IRLF 


THE  JAMES  K.  MOFFITT  FUND. 

LIBRARY  OF  THE  UNIVERSITY  OF  CALIFORNIA. 


GIFT  OF 

JAMES  KENNEDY  MOFFITT 

OF  THE  CLASS  OF  '86. 


Accession  No. 8. &  8.0  7  Class  No. 


WORKS  BY  PROF.  JOHN  BASCOM. 


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G.  P.  PUTNAM'S  SONS,  NEW  YORK. 


GROWTH  OF  NATIONALITY 

IN 

THE  UNITED  STATES 


A  SOCIAL  STUDY 


BY 

JOHN   BASCOM 

AUTHOR  OF  "SOCIOLOGY,"  "SOCIAL  THEORY,"  "PROBLEMS  IN 

PHILOSOPHY,"   ETC. 


OF   T»K 

UNIVERSITY 


SECOND  IMPRESSION 


G.  P.  PUTNAM'S  SONS 
NEW  YORK  &  LONDON 
Gbe  IKnicfcerbocfcer  {press 

1900 


COPYRIGHT,  1899 

BY 
JOHN  BASCOM 


Ube  Unicfeei-bocfeer  press,  Iftew  tforfc 


PREFACE 

THIS  volume  is  the  fruit  of  lectures  which  have  fol 
lowed  for  a  series  of  years  in  the  class-room  a  study 
of  the  Constitution  of  the  United  States.  They  break 
away  somewhat  from  the  technical  and  formal  character 
of  that  chart  of  liberties,  and  discuss  its  connection,  in 
development,  with  the  national  life  it  has  so  materially 
aided  in  calling  forth,  and  with  the  social  life  which  has 
sprung  up  under  it.  It  is  thus  a  vital,  quite  as  much  as 
a  legal,  growth  that  is  considered ;  and  the  two  together 
constitute  a  social  study. 

Those  who  are  pursuing  a  similar  line  of  work  may,  it 
is  hoped,  be  aided  by  these  discussions. 


8%807 


CONTENTS 


Introduction 

PAGE 

1.  NATURE  OF  NATIONALITY i 

2.  RELATION  OF  CHURCH  AND  STATE      ...         2 

3.  THE  UNITING  AND  THE  DIVISIVE  FORCES  IN  THE 

UNITED  STATES        ......  3 

4.  DIVISIVE  TENDENCIES 4 

5.  UNITING  TENDENCIES 6 

6.  FOUR  POINTS  OF  DISCUSSION       ....  7 

CHAPTER  I 
The  Supreme  Court 


10 


1.  PERIODS  IN  ITS  HISTORY     .... 

2.  FIRST  PERIOD I0 

3.  DECISIONS I2 

4.  SECOND  PERIOD   ......  13 

5.  THIRD  PERIOD Ty 

6.  FOURTH  PERIOD 2O 

CHAPTER  II 
Strife  between  the  States  and  the  United  States 

1.  THE  FIRST  CONTENTION 21 

2.  FEDERALISTS  AND  REPUBLICANS  .         .         .         .21 

3.  RESOLUTIONS  OF  1798 23 

4.  JEFFERSON  AND  THE  WAR,  1812           ,  26 


vi  Contents 

PAGE 

§    5.  HARTFORD  CONVENTION      .....  27 

§    6.  SUITS  BROUGHT  BY  A  CITIZEN  AGAINST  A  STATE  .  29 

§    7.  SLOOP  "  ACTIVE  "  AND  PENNSYLVANIA  .         .         .  30 

§    8.  OHIO  AND  KENTUCKY          .....  31 
§    9.   NEW    DEVELOPMENT   OF    NATIONALITY   AT    THE 

CLOSE  OF  THE  WAR         .....  32 

§  10.   NULLIFICATION  AND  SOUTH  CAROLINA        .         .  37 

§11.  GEORGIA 39 

§12.  WISCONSIN  AND  NEW  YORK         ....  40 

§  13.  TAXES — NATURALIZATION — BILLS  OF  CREDIT       .  41 

CHAPTER  III 
Strife  between  Groups  of  States  for  Control 

§    i.   DIFFERENCES  BETWEEN  THE  Two  GROUPS     .         .  46 

§    2.   INCREASING  FORCE  OF  THESE  DIFFERENCES         .  47 
§    3.  COMPROMISES  OF  THE  CONSTITUTION  .         .         .48 

§    4.  THREE  PERIODS     ....                 .         .  50 

§    5.  THE  OPENING  OF  THE  STRUGGLE        .         .         .51 

§    6.  GROWTH  OF  THE  CONTROVERSY  ....  54 

§    7.  INCOMPATIBLE  TENDENCIES  .....  56 

§    8.  ADMITTANCE  OF  NEW  STATES     ....  57 

§    9.  SLAVE  TRADE      .         .         .         .         .         .         .  58 

§  10.  SECOND  PERIOD 59 

§  ii.  THE  MORAL  STRUGGLE 61 

§  12.  EXTENT  AND  INTENSITY  OF  THE  STRIFE    .         .  63 

§  13.   EFFECT  ON  THE  NATIONAL  TEMPER   ...  65 

§  14.   POLITICAL  EVENTS 66 

§  15.  GUARANTIES  OF  THE  CONSTITUTION    ...  68 

§  16.  RIGHTS  OF  CITIZENS  OF  THE  SEVERAL  STATES       .  70 

§  17.  THE  MEXICAN  WAR 71 

§  1 8.  ACQUISITION  OF  TERRITORY         ....  73 

§  19.   STRUGGLE  IN  ITS  DIVISION 74 

8  20.   FINAL  COMPROMISE  7*> 


Contents  vii 

PAGE 

§21.   RESULTS       ........  78 

g  22.  CALHOUN,  CLAY,  WEBSTER  .....  80 

§  23.   LINCOLN,  SEWARD 83 

§  24.   POPULAR  SOVEREIGNTY 84 

§  25.   DRED  SCOTT  DECISION 86 

§  26.  THE  NATURE  OF  THE  ISSUE 90 

CHAPTER  IV 
Reconstruction  and  Nationality 

§    i.  THE  YEARS  IMMEDIATELY  FOLLOWING  THE  WAR  .  92 

§    2.   LEGAL-TENDER  ACT 93 

§    3.   RELATION    OF    THE    SECEDED    STATES    TO    THE 

UNION      ........  95 

§    4.  THE  FOURTEENTH  AMENDMENT  ....  96 

§    5.  CITIZENSHIP 98 

§    6.   RIGHTS  OF  CITIZENSHIP        .  102 

§    7.  SLAUGHTER-HOUSE  CASES    .....  103 

§    8.  RESULTS  OF  THE  DECISION 104 

§    9.  LIMITATIONS  OF  THE  GENERAL  GOVERNMENT        .  106 

CHAPTER  V 
Strife  between  Departments 

§    i.   RELATION,  OF  DEPARTMENTS        ....  108 

§    2.  JUDICIAL  AND  LEGISLATIVE  DEPARTMENTS          .  109 

§    3.  LEGAL-TENDER  CASES no 

§    4.  MILITARY  ACTION        .         .         .         .         .         .112 

§    5.   EVASION  OF  CONFLICT 114 

§    6.   EXECUTIVE  AND  LEGISLATIVE  DEPARTMENTS      .  115 
§    7.  ANDREW  JOHNSON         .         .         .         .         .         .116 

§    8.   PARDONING  POWER 120 

§    9.   SEPARATION  OF  THE  Two  DEPARTMENTS    .         .  122 

§  10.   FORMATION  OF  TREATIES 123 


viii  Contents 

PAGE 

§  ii.  CONSTRUCTION  OF  THE  SENATE  .        .        .        .125 

§  12.  ATTITUDE  OF  THE  HOUSE 127 

§  13.  DIFFICULTIES 130 

CHAPTER  VI 

Strife  between  Classes 

§    i.  CHANGES  IN  THE  FORM  OF  CONFLICT  .        .        .  132 

§    2.  FOURTH  CONFLICT 133 

§    3.  OBLIGATION  OF  CONTRACTS         ....  135 

§    4.  LIMITATION  OF  CONTRACTS          ....  136 

§    5.  CHARLES  RIVER  BRIDGE 138 

§    6.  PRINCIPLES  INVOLVED  ......  141 

§    7.  ADVANTAGES  OF  CORPORATIONS  .  142 

§    8.  PUBLIC  OBLIGATIONS 144 

•§    9.   MUNICIPAL  AND  STATE  GOVERNMENT          .         .  145 

§  10.   POLICE  POWER 146 

§  n.  EXAMPLES 148 

§  12.  LIQUOR  LAWS 150 

§  13.  EXTENSION  OF  THE  POWER  OF  THE  STATE — ELE 
VATORS    .         .......  152 

§  14.   RAILROADS .         .  155 

§  15.   RAILROADS 156 

§  16.  INTERSTATE  COMMERCE  COMMISSION    .         .         .  158 

§  17.  THE  NEED  OF  THE  COMMISSION  .         .         .  160 

§  18.   ITS  OBJECTS 161 

§  19.   DIFFICULTIES  IN  ITS  WAY 165 

§  20.   ITS  METHOD  OF  ACTION      .....  167 

§  21.  ITS  PRESENT  CRITICAL  POSITION         .         .         .  168 

§  22.   ITS  IMMEDIATE  EMBARRASSMENTS        .         .         .  169 

§  23.   INABILITY  TO  SECURE  TESTIMONY       .         .         .  171 
§  24.   DIFFERENT   RENDERINGS   OF   THE   LAW   BY   THE 

COMMISSION  AND  BY  THE  COURTS  .         .         .173 
§  25.  REOPENING  OF  CASES  BY  THE  COURTS        .         .174 


Contents 


PAGE 


§  26.  AMENDMENTS  URGED  BY  THE  COMMISSION  .  .     175 
§  27.  RECENT  DECISIONS  CRIPPLING  THE  COMMISSION  .     177 

§  28.  THE  JUDICIARY  AND  SOCIAL  QUESTIONS     .  .     179 

§  29.   INJUNCTIONS         .....  •     181 

§  30.   LIMITATIONS  ON  THE  POWER  OF  INJUNCTIONS  .     183 

§  31.  THE  LABOR  MOVEMENT       ...  .185 

§  32.  THE  INCOME  TAX  AND  THE  SUPREME  COURT  .     186 

§  33.  GROUNDS  OF  ATTACK  ...                 .  188 

§  34.  RESULTS  OF  THE  DECISION  .  .190 

CHAPTER  VII 

Conclusions 

1.  FIRST  EMBARRASSMENT  TO  NATIONAL  GROWTH    .  195 

2.  SECOND  EMBARRASSMENT  TO  NATIONAL  GROWTH  196 

3.  THIRD  EMBARRASSMENT  TO  NATIONAL  GROWTH  .  197 

4.  THE  PRESENT  CONFLICT      ...  .  198 

5.  THE  COMMERCIAL  TEMPER  ...  .  199 

6.  CONTRAST  BETWEEN  ENGLAND  AND  THE  UNITED 

STATES .201 

§    7.  GROUNDS  OF  THE  DIFFERENCE     ....     206 


GROWTH  OF  NATIONALITY  IN 
THE  UNITED  STATES 


Introduction 

§  i.  NATIONAL  life  springs  from  physical  conditions, 
but  has  its  fruitage  in  social  and  moral  ones.  Its  starting- 
point  is  usually  unity  in  race.  This  carries  with  it  unity 
in  language  and  leads  to  unity  in  religion,  in  customs, 
pursuits,  and  civic  institutions.  We  more  often  direct 
our  attention  to  the  starting-point,  unity  of  race,  but  the 
affiliations  in  life  which  follow  from  it  express  the  true 
force  of  nationality. 

Natural  ties  subdivide,  widen,  and  weaken ;  earlier 
ones  are  displaced  by  later  ones;  the  divisive  forces  of 
development  rend  them  asunder  and  introduce  new 
terms.  Nations  to-day  very  separate  will  be  found  to 
coalesce  if  we  trace  them  back  far  enough,  and  the  life 
that  is  now  embraced  in  strong  national  ties  may  suffer 
in  turn  dissolution.  Nationality,  as  a  social  fact,  is  a 
constant  achievement.  There  is  a  perpetual  shifting  of 
forces,  external  and  internal.  Harmonizing  and  divisive 
tendencies  take  on  new  relations  to  each  other.  The  real 
unity  in  the  common  life  is  a  moral  one — an  affiliation  of 
aims,  interests,  and  obligations.  Nationality  is  a  social 
growth  out  of  the  soil  of  physical  conditions. 


2  The  Growth  of  Nationality 

National  life  is  the  most  comprehensive,  conspicuous, 
and  permanent  of  the  organic  products  embraced  in 
human  society.  It  tends,  with  advancing  civilization,  to 
include,  and  to  make  definite,  more  and  more  of  the 
social  and  intellectual  relations  between  men.  It  is  the 
natural  foundation  of  the  state.  If  the  state  has  been 
formed  in  only  partial  accord  with  national  ties,  it  begins 
immediately,  by  its  own  action,  to  develop  and  strengthen 
these  ties.  Failing  of  this,  it  readily  falls  to  pieces.  As 
civilization  increases  in  complexity,  the  state  necessarily 
takes  upon  itself,  both  in  extending  protection  and  aid, 
a  greater  variety  of  services;  and  is  called  on  to  ren 
der  these  services  with  increasing  fulness  and  precision. 
There  is,  therefore,  in  the  development  of  the  state,  a 
growing  need  of  national  life  as  a  means  of  multiplying 
the  common  resources  and  harmonizing  the  common  in 
terests.  The  life  which  lies  at  the  centre  of  the  state 
must  have  its  true  unfolding  in  it  and  with  it. 

§  2.  The  only  organization  which  can  be  compared  in 
comprehensiveness  with  that  of  the  nation  is  that  incident 
to  religious  belief  and  action,  and  which  we  call  in  con 
nection  with  Christianity  the  church.  When  the  two, 
the  church  and  the  state,  cover  the  same  territory  and  are 
commingled  in  their  duties,  the  church  claims  the  wider 
and  the  more  absolute  power.  Indeed,  if  the  two  directly 
touch  each  other  and  run  parallel  with  each  other,  this  is 
the  inevitable  relation,  the  only  logical  order  of  depend 
ence.  The  church  cannot  squarely  confront  the  state 
and  at  the  same  time  yield  to  it.  Its  claims,  if  claims 
it  has,  must  be  ultimate  and  supreme.  The  church  and 
the  state  are  but  awkward  copartners  in  the  same  tasks. 
The  entire  relation  between  them,  therefore,  has  been 
shifted,  or  is  being  shifted,  on  to  other  grounds.  The 


Introduction  3 

authority  of  faith,  absolute  though  it  be,  is  accepted  as 
purely  personal  and  spiritual;  and  the  authority  of  the 
state  as  collective  and  physical.  The  one,  in  its  last  ex 
pression,  relies  on  the  thoughts  of  men ;  the  other  rests 
as  constraint  on  their  actions.  Thus  viewed  they  are  no 
longer  commensurate  with  each  other.  Each  may  pursue 
its  purposes,  certainly  not  unaided  or  unaffected  by  the 
other,  but  uninterrupted  by  the  other.  The  inner  life  of 
society,  and  so  its  outer  form,  will  be  profoundly  modified 
by  faith;  but  these  modifications  will  steal  in  imper 
ceptibly  along  spiritual  channels.  The  scope  and  free 
dom  of  the  state,  in  its  efforts  to  build  up  the  nation, 
will  be  felt  by  the  church,  but  be  felt  in  common  with  all 
other  forms  of  social  activity.  The  church  thus  becomes 
a  life  within  a  life.  The  outer  life  which  it  amplifies  and 
elevates  is  the  life  of  the  nation.  The  two  stand  on 
terms  of  constant  action  and  reaction,  each  resting  back 
on  the  same  social  and  spiritual  principles. 

§  3.  At  the  time  of  the  formation  of  the  Constitution 
of  the  United  States,  the  forces  which  were  acting  divi- 
sively  on  the  national  life  and  looked  to  the  development 
of  separate  States  or  groups  of  States,  and  the  forces 
which  tended  to  extend  and  consolidate  the  national  life 
and  make  it  co-extensive  with  race  relations,  were  ac 
tive  and  evenly  balanced.  The  very  designation,  United 
States,  bears  witness  to  this  coming  together  of  those  in 
many  respects  separate.  A  divided  and  a  united  de 
velopment  were  alike  open  to  the  colonies  which  had  now 
cast  off  foreign  restraint  and  national  unity.  The  turning- 
point  between  the  two  tendencies  was  reached  at  the  close 
of  the  Revolution.  The  question  was  then  raised  and 
settled,  which  of  the  dividing  ways  should  be  taken. 

The  balance  between  these  impulses  was  a  very  even 


4  The  Growth  of  Nationality 

one,  looked  at  not  in  the  light  of  comprehensive  prin 
ciples  but  of  existing  interests.  The  forces  which  made 
for  separation  were  relatively  narrow,  but  were  immediate 
and  strongly  felt.  Those  which  looked  to  unity  were 
much  grander  and  intrinsically  more  weighty,  but  they 
called  for  a  corresponding  scope  of  thought  and  feeling 
to  respond  to  them. 

§  4.  Each  of  the  colonies  arose  largely  as  a  segregation 
of  interests,  of  religious  beliefs,  of  commercial  ends,  of 
personal  tastes  and  social  relations.  Several  things  aided 
this  original  diversity.  The  various  colonies,  with  marked 
peculiarities,  drew  to  themselves  those  of  a  similar  tem 
per.  The  Puritan  felt  himself  the  more  justified  in  expel 
ling  the  sectarist  who  JDrought  contention  because  a  large 
country  was  open  to  him,  and  each  colony  had  a  kind  of 
ownership,  not  only  in  the  advantages,  but  in  the  social 
and  religious  atmosphere,  it  had  created. 

The  distances  between  the  colonies,  and  the  absorbing 
character  in  each  of  them  of  its  own  pursuits,  tended 
strongly  to  distinct  development.  Not  only  had  the 
original  emigration  been  much  affected  by  divisive  forces 
in  English  society ;  not  only  had  the  very  fact  of  emigra 
tion  intensified  these  attractive  and  these  repellent  im 
pulses;  the  circumstances  of  each  community  were  such 
as  to  unite  them  closely  within  themselves  and  separate 
them  from  other  communities.  The  distances  between 
them  were  much  more  formidable  barriers  than  we  can 
now  think  of  them  as  being. 

The  precise  phase  of  liberty  which  characterized  the 
colonies  tended  to  the  same  result.  Their  main  conten 
tion  was  to  secure  and  defend  local  government.  Any 
government  beyond  this  they  associated  with  tyranny; 
the  wider  obligations  were  burdensome,  to  be  accepted 


Introduction  5 

only  as  a  necessity.  The  local  liberty  which  the  colonies 
sought  was  of  a  narrow  and  somewhat  refractory  order, 
and  stood  very  much  in  the  way  of  any  extended  union. 
The  feeling  was  instinctive  that  any  concentrated  gov 
ernment,  any  authority  in  the  distance,  would  prove  to 
be  an  encroachment  on  the  activity  and  freedom  that 
each  colony  enjoyed  in  ordering  its  own  affairs.  The 
spirit  of  liberty  with  them  was  not  one  subdued  to  a  com 
prehensive  sense  of  the  wants  of  men  and  the  growth  of 
society,  but  was  a  restive  temper  which  had  shaken  off 
many  restraints,  and  was  disposed  to  minimize  organic 
claims.  It  was  the  individualism  of  the  pioneer,  who  is 
vigorous  to  care  for  himself,  and  has  only  a  restricted 
interest  in  the  combining  power  of  coming  events. 

While  the  Revolution  had  necessitated  combination, 
its  main  purpose  had  been  to  cast  off  foreign  authority. 
There  was  thus,  in  the  movement  itself,  a  divided  tend 
ency.  The  object  of  release  being  reached,  the  combi 
ning  force  was  lost,  and  the  local  impulses  gained  new 
ascendency.  The  lessons  of  the  past  seemed  to  teach 
quite  as  distinctly  local  government  as  collective  govern 
ment. 

The  colonies  had  so  little  intercourse  with  each  other, 
the  dangers  to  which  they  were  exposed  were  usually  so 
restricted  and  peculiar  to  themselves,  that,  outside  of 
New  England,  there  had  been  but  little  combination  or 
consort  of  action.  Even  in  New  England  the  federation 
of  colonies  was  a  weak,  not  a  strong,  tie ;  a  secondary,  not 
a  primary,  authority. 

While  the  Revolution  gave  rise  to  concurrent  action 
and  drew  out  strongly  supporting  feelings,  yet,  as  the 
struggle  became  protracted  and  severe,  the  effort  to  unite 
the  colonies  grew  increasingly  irksome  and  inefficacious. 


6  The  Growth  of  Nationality 

Wilfulness,  negligence,  and  disregard  became  conspicu 
ous.  When  the  close  of  the  war  finally  came,  it  found 
the  country  in  a  state  of  exhaustion,  disintegration,  and 
dissatisfaction ;  unable  to  meet  existing  obligations  and 
indisposed  to  incur  new  ones.  The  organic  effort  showed 
weariness  and  failure  rather  than  growth.  Under  the 
pressure  of  the  war,  and  still  more  when  this  pressure  was 
removed,  the  States  began  to  fall  apart,  each  turning  to 
its  own  affairs. 

They  had  small  occasion  to  congratulate  themselves  on 
the  manner  in  which  their  collective  duties  had  been 
performed.  Nor  had  these  duties  become  the  occasion 
of  increasing  confidence  in  each  other.  It  was  quite 
possible,  therefore,  that  the  Federal  Government,  as  it 
dissolved  away  in  weakness,  should  not  be  replaced  by 
any  general  union.  The  different  sections  of  a  large 
country,  with  distinct  interests  and  divided  feelings, 
stood  ready  to  take  up  a  sporadic  development  which 
would  have  slowly  smothered  the  germs  of  national 
growth. 

§  5.  The  influences  which  made  in  an  opposite  direc 
tion  were  almost  wholly  of  an  ideal  character,  prevailing 
in  the  minds  of  a  few  only.  They  were  the  theoretical 
excellence  of  the  proposed  government,  the  attainable 
prosperity  and  power  of  the  States  when  once  united,  the 
magnificence  of  the  national  life  which  might  spring 
from  the  union,  and  the  unbounded  physical  resources 
which  stood  ready  to  nourish  its  strength.  Fortunately 
—with  a  fortune  which  has  been  rarely  equalled  in  the 
world's  history — the  wider  and  more  ideal  aims  prevailed. 
But  the  grander  the  conceptions  before  the  minds  of  those 
who  framed  the  Constitution  and  who  secured  its  adop 
tion,  the  greater  the  chasm  which  separated  them  from 


Introduction  7 

the  average  feeling  which  prevailed  in  the  several  States. 
This  chasm  must  be  filled  in.  National  life  could  not 
come  at  once  as  the  fruit  of  resolutions  or  of  civic  insti 
tutions.  It  must  spring  up  slowly  under  the  new  condi 
tions  provided  for  it.  The  greatness  of  the  Constitution 
must  be  recognized ;  the  manifold  relations  and  duties  it 
carried  with  it  must  be  appreciated.  It  is  this  which 
is  to  occupy  our  attention;  the  growth  of  national  life 
under  the  Constitution,  the  adaptation  of  the  government 
to  the  people  and  of  the  people  to  the  government  till 
they  coalesced  in  a  compact  and  vigorous  nation.  The 
sense  of  common  interests  was  to  overcome  the  more  ob 
vious  fact  of  divided  ones.  States  and  classes  and  pursuits 
were  to  coalesce  on  the  basis  of  fundamental  principles, 
and  a  patriotism  was  to  spring  up  as  wide  as  the  ties  of 
race  which  drew  the  colonies  to  each  other,  and  as  com 
prehensive  as  the  unmeasured  gifts  of  nature  which  lay 
about  them.  The  continental  forces  were  to  prevail. 

§  6.  The  divisions  which  were  incident  to  the  condi 
tions  under  which  the  Constitution  was  framed  and 
adopted,  or  which  grew  up  later  under  its  operation, 
were  of  four  kinds:  strife  between  a  State  or  States  and 
the  General  Government ;  strife  between  groups  of  States 
in  an  effort  to  secure  the  control  of  the  General  Govern 
ment  and  determine  its  policy;  contention  between  the 
several  departments  of  government;  a  struggle  between 
different  interests  and  classes  tempted  to  enlarge  their 
power  against  each  other  under  some  perverted  render 
ing  of  the  public  welfare. 

For  many  years  the  most  obvious  lack  of  concord  was 
found  between  the  States,  each  asserting  its  own  author 
ity  in  opposition  to  that  of  the  General  Government. 
This  strife  lay  in  the  nature  of  the  case.  The  people  of 


8  The  Growth  of  Nationality 

the  several  States  had  been  accustomed  to  an  almost 
complete  control  of  their  own  affairs.  They  had  yielded 
with  reluctance  a  considerable  portion  of  this  sovereignty 
to  the  United  States.  When  the  extent  of  the  concession 
came  to  be  felt  they  were  disposed  to  resist  the  surrender, 
and  to  put  upon  it  the  lowest  terms — terms  oftentimes 
inadmissible  under  the  purposes  proposed  and  pursued 
by  the  national  movement. 

When  the  States — usually  taking  up  the  resistance  to 
the  central  authority  on  some  local  and  therefore  weak 
ground — had  been  taught  in  succession  the  lesson  of  sub 
mission,  there  arose  the  more  comprehensive  purpose  of 
laying  hold  of  the  National  Government  and  making  it 
the  organ  of  one  or  other  of  the  two  types  of  social  senti 
ment  which  divided  the  country,  North  and  South.  This 
became  the  great  danger  of  the  growing  nationality  and 
very  nearly  blasted  it. 

Attendant  on  these  struggles,  and  of  less  moment  than 
either  of  them,  was  a  sporadic  contention  between  the 
departments  of  government.  The  theory  of  the  Consti 
tution  involved  a  separation  of  the  three  leading  depart 
ments  with  mutual  restraints.  This  was  an  equilibrium 
difficult  to  be  maintained.  The  unity  provided  for  lay 
in  the  people,  and  not  in  the  organs  of  authority.  These 
were  to  receive  and  express  separately,  yet  harmoniously, 
the  mind  of  the  nation.  The  General  Government  has 
passed  through  critical  experiences  in  this  regard,  but 
with  results  which  have  so  far  justified  the  expectations 
of  the  framers  of  the  Constitution.  If  any  weakness  were 
to  develop  itself  in  the  temper  of  the  people,  this  danger 
would  be  sure  to  reappear. 

As  the  government  of  the  United  States  has  steadily 
gained  in  power — its  wheels  making  their  revolutions 


Introduction  9 

with  increased  ease  and  vigor — the  social  questions  in 
cident  to  national  life  have  become  correspondingly  ur 
gent.  The  one  fundamental  inquiry  in  national  growth 
is  whether  all  interests,  ever  gaining  in  magnitude,  are 
being  reconciled;  whether  classes  are  being  united  to 
each  other  in  a  wholesome  ministration  to,  and  participa 
tion  in,  the  public  welfare.  The  social  life  is  the  last  and 
deepest  expression  of  the  national  life.  By  the  prosper 
ity  achieved  at  this  point  must  we  judge  the  nation  and 
the  hope  of  the  years  which  lie  before  us.  It  is  in  this 
contention  between  the  many  and  the  few  that  we  are 
now  engaged.  It  was  the  reconciliation  of  all  claims  in 
universal  liberty  that  constituted  our  original  purpose, 
and  it  is  the  possibility  of  this  harmony  that  now  occu 
pies  us. 


CHAPTER  I 

The  Supreme  Court 

§  I.  THESE  four  forms  of  dissension,  which  we  shall 
take  up  in  order,  have  been  all  closely  associated  in  their 
adjustments  with  the  judicial  department,  whose  com 
plete  expression  is  the  Supreme  Court  of  the  United 
States.  It  has  been  in  this  tribunal  that  the  underlying 
principles  on  which  the  national  life  is  resting  have  found 
discussion  and  authoritative  statement.  A  brief  outline 
of  the  history  of  the  Supreme  Court  will  further  our  pur 
pose  in  tracing  the  growth  of  nationality  in  the  United 
States. 

This  history  may  be  divided  into  four  periods.  The 
first  extends  twelve  years,  from  the  formation  of  the 
Government  to  the  appointment  of  John  Marshall  as  chief- 
justice  in  1801.  The  second  period  reaches  to  1835,  the 
close  of  Marshall's  service.  The  third  period  covers  the 
term  of  Chief- Justice  Taney,  and  is  included  between 
1835  and  1864.  The  last  period  comprehends  the  inter 
vening  time  to  the  present. 

§  2.  The  first  period  was  tentative,  incipient,  and 
reached  no  very  positive  results.  It  required  a  prophetic 
eye  in  these  earlier  years  to  discern  coming  events;  to 
see  in  a  tribunal  that  had  gained  hardly  any  consideration 
one  that  should  pronounce  authoritatively  on  the  tenure 
of  legislatures  and  governors  in  the  several  States. 

The  court  was  presided  over  during  these  first  twelve 

10 


The  Supreme  Court  n 

years  by  John  Jay  and  Oliver  Ellsworth.  John  Rutledge 
acted  in  this  capacity  one  term  of  the  court,  in  the  inter 
val  between  Jay  and  Ellsworth,  but  was  not  confirmed 
by  the  Senate.  Both  Jay  and  Ellsworth  were  appointed 
as  envoys  extraordinary,  the  one  to  England  and  the 
other  to  France,  and  for  this  reason  resigned  their  posi 
tions.  This  fact  goes  to  show  that  the  superior  dignity 
and  unrivaled  importance  of  the  office  of  Justice  of  the 
Supreme  Court  were  not  yet  fully  felt.  When  Jay,  hav 
ing  accomplished  his  mission  in  England,  was  invited  to 
resume  his  position  on  the  bench,  he  answered:  "  I  left 
the  bench  perfectly  convinced  that,  under  a  system  so 
defective,  it  could  not  attain  the  energy,  weight,  and 
dignity  which  were  essential  to  its  affording  due  support 
to  the  National  Government."  Thus  the  first  five  years 
of  the  Supreme  Court,  as  interpreted  by  its  chief-justice, 
promised  failure  rather  than  success  in  its  great  mission. 
Resignations  were  not  infrequent.  The  number  of  cases 
brought  before  the  court  was  small.  When  it  first  met, 
in  1790,  no  business  occupied  it.  In  Peters's  Condensed 
Reports  two  pages  are  given  to  1791,  three  to  1792,  two 
to  1793,  five  to  1794,  and  seventy  to  1795-  A  lean 
primer  would  embrace  the  five  years  of  Chief-Justice  Jay, 
as  against  the  four  and  five  fat  volumes  now  annually 
issued.  In  the  first  years  of  Marshall,  the  average  num 
ber  of  cases  before  the  court  each  year  was  twenty-four; 
from  1875  to  1880  the  average  was  three  hundred  and 
ninety-one. 

The  weakness  of  the  earlier  years  was  not  due  to  any 
failure  in  the  court  itself,  but  to  the  slight  weight  as  yet 
attached  to  its  decisions.  The  channel  was  dry,  but  the 
waters  had  not  been  turned  into  it.  Though  the  court 
was  not  able  to  do  much  to  establish  its  own  power,  it 


1 2  The  Growth  of  Nationality 

kept  the  way  open  for  future  growth.  An  effort  was 
made  by  Congress,  in  1791,  to  impose  on  the  courts  of 
the  United  States  certain  administrative  duties  in  con 
nection  with  pensions.  The  courts  declined  to  accept 
them,  as  not  embraced  in  their  judicial  work.  President 
Washington  addressed  to  the  Supreme  Court  a  series  of 
interrogations,  as  a  guide  to  his  own  action.  The  court 
declined  to  respond,  on  the  ground  that  it  might,  by  so 
doing,  anticipate  or  embarrass  its  own  judicial  action. 

§  3.  The  Supreme  Court,  in  this  earlier  period,  though 
only  the  shadow  of  its  later  self,  struck  the  true  national 
key  in  its  decisions.  In  the  case  of  Hylton  vs.  United 
States,  3  Dallas,  171,  the  power  of  the  General  Govern 
ment  to  lay  taxes  was  fully  sustained.  A  tax  had  been 
laid  upon  carriages.  It  was  resisted  as  unconstitutional 
on  the  ground  that  it  was  a  direct  tax  and  yet  had  not 
been  apportioned  under  article  first,  section  ninth,  and 
clause  fourth  of  the  Constitution  :  "  No  direct  tax  shall  be 
laid  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken."  The  court  sustained 
the  tax  without  dissent.  '  The  rule  of  apportionment 
was  to  be  adopted  only  when  it  can  reasonably  apply." 
The  limitation  failed  when  it  was  inapplicable,  not  the 
power  to  which  it  pertained.  There  was  but  one  restric 
tion  on  this  power  in  the  Constitution — that  no  tax  should 
be  laid  on  exports.  The  two  limitations  in  method,  that 
of  apportionment  and  that  of  uniformity,  were  to  be 
wisely  employed  according  to  the  nature  of  the  case. 
The  word  "  direct  "  was  not  an  absolute  designation. 
"  The  Constitution  contemplated  no  taxes  as  direct  but 
such  as  could  be  apportioned."  The  applicability  of  the 
limitation  must  appear  in  the  tax  itself.  No  technical 
or  verbal  difficulty  was  allowed  to  restrain  the  court  from 


The  Supreme  Court  13 

the  fullest  assertion  of  the  cardinal  power  of  the  General 
Government,  that  of  taxation. 

In  the  case  of  Ware  vs.  Hylton,  3  Dallas,  199,  the 
treaty  of  1783  was  sustained  as  the  supreme  law  of  the 
land.  The  Legislature  of  Virginia,  in  1779,  had  directed 
that  debts  owed  to  British  subjects  should  be  paid  into 
the  loan  office  of  the  State.  The  Supreme  Court  accepted 
this  action  of  the  State  as  lawful,  but  regarded  the  law  as 
annulled  by  the  treaty,  and  the  claims  of  English  citizens 
as  having  revived.  The  claimant  could  "  meet  with  no 
lawful  impediment  "  in  the  collection  of  his  debt.  This 
was  a  practical  assertion  of  the  supremacy  of  the  General 
Government,  and  was  most  distasteful  to  the  States. 

§  4.  The  second  period  was  ushered  in  by  a  sharp 
contention  between  the  two  political  parties  as  to  the 
construction  of  the  courts.  The  Federalists,  the  friends 
of  a  vigorous  central  authority, had  favored  the  judiciary 
as  the  key  of  the  position.  The  Republicans,  jealous  of 
the  power  of  the  General  Government,  were  disinclined 
to  the  courts,  as  an  independent  expression  of  this 
power.  The  Federalists,  when  about  to  yield  up  the 
control  of  the  government,  constituted  six  new  courts  and 
appointed  sixteen  judges.  The  Republicans,  under  the 
lead  of  Jefferson,  when  they  entered  on  authority,  abol 
ished  the  new  tribunals,  and  so  got  rid  of  the  Federal 
judges. 

A  similar  temper  was  manifested  in  the  impeachment 
of  Judge  Chase.  Judge  Chase,  an  associate  justice,  a 
man  of  a  strong  and  impetuous  character,  and  a  thorough 
Federalist,  had  said  indiscreet  things  on  the  bench,  and 
taken  some  conspicuous  part  in  political  action.  This 
was  made,  on  the  accession  of  Jefferson  to  the  presidency, 
the  ground  of  an  impeachment,  conducted  by  John 


1 4  The  Growth  of  Nationality 

Randolph.  The  impeachment  failed,  and  by  its  fail- 
ure  secured  the  safety  of  the  judges  from  this  method  of 
political  attack.  Randolph  submitted  an  amendment, 
that  the  judges  of  the  Supreme  Court  and  of  all  other 
courts  should  be  removable  by  the  President  on  the  joint 
address  of  both  Houses.  This  passionate  effort  passed 
by  and  left  the  position  of  the  judges  more  unassailable 
than  before. 

The  second  period,  as  a  period  of  great  productive 
power,  was  prepared  for  by  the  appointment  of  John 
Marshall,  a  last  bequest  of  John  Adams.  Many  circum 
stances  favored  the  influence  which  fell  in  so  unusual  a 
degree  to  Chief-Justice  Marshall.  He  was  a  Virginian. 
He  had  a  wide  practice  in  the  law,  and  had  rendered  im 
portant  public  service.  He  was  a  wise  and  staunch 
supporter  of  the  Constitution  and  of  Washington's  ad 
ministration.  He  was  not  simply  a  man  of  profound 
comprehension  and  superior  legal  acumen ;  he  added  to 
these  endowments  a  sound  estimate  of  the  general  wel 
fare.  In  integrity  of  thought  he  had  no  superior.  He 
was  preeminently  fitted  to  expound  the  Constitution,  and 
build  up,  by  means  of  it,  the  national  life.  No  man  in 
our  history  has  rendered  more  apt  and  more  acceptable 
service.  During  a  long  period,  in  which  the  Constitution 
was  taking  form,  he  consolidated  the  judicial  principles 
applicable  to  our  wants,  and  gave  them  weight  in  our 
counsels.  His  work  went  steadily  forward  almost  with 
out  a  flaw.  The  simply  technical  and  formal  bearings  of 
a  case  were  wisely  subjected  to  the  national  interests  in 
volved  in  them.  The  spirit  of  his  method  is  fully 
expressed  in  McCullock  vs.  Maryland,  4  Wheaton,  316. 
The  point  at  issue  was  the  right  of  the  State  of  Maryland 
to  tax  branches  of  the  Bank  of  the  United  States.  This  in- 


The  Supreme  Court  15 

volved  the  question  of  the  constitutionality  of  the  Bank  of 
the  United  States.  The  question  of  the  constitutionality 
was  the  primary  discussion  contained  in  the  opinion. 
Marshall  held  that  while  no  distinct  right  was  given  to 
the  General  Government  to  charter  a  bank,  the  great 
powers  explicitly  conferred  to  lay  and  collect  taxes,  to 
borrow  money,  to  regulate  commerce,  to  declare  war, 
drew  after  them  this  power.  "  In  considering  this  ques 
tion,  then,  we  must  never  forget  that  it  is  a  constitution 
we  are  expounding."  "  The  general  views  and  objects 
of  the  Constitution  are  to  prevail."  '  The  government 
which  has  a  right  to  do  an  act,  and  has  imposed  on  it  the 
duty  of  performing  that  act,  must,  according  to  the  dic 
tates  of  reason,  be  allowed  to  select  the  means." 

This  line  of  argument  excluded  all  idea  of  strict,  or  of 
free,  construction  as  a  rule  of  procedure,  and  accepted 
the  one  or  the  other  as  the  primary  purpose  of  the  Con 
stitution  called  for  it.  This  opinion  lent  itself  readily, 
at  a  later  period,  to  the  support  of  the  constitutionality 
of  greenbacks. 

Jefferson  did  not  regard  the  purchase  of  Louisiana  as 
constitutional.  Marshall  had  no  hesitancy  in  reference 
to  it.  Insurance  Co.  vs.  Canter,  I  Peters,  511:  "  The 
Constitution  gives  power  to  make  war  and  peace  and 
treaties.  These  cover  the  right  to  acquire  territory." 
The  Constitution,  rendered  in  this  spirit,  offers  little  ob 
struction  to  the  leading  objects  of  national  life.  The 
attention  is  directed  primarily,  as  it  should  be,  to  the 
fitness  of  the  given  act. 

There  was  a  natural  antipathy  between  Jefferson  and 
Marshall  in  their  political  opinions.  In  the  opposition 
which  springs  up  between  individualism  and  collectivism, 
prior  to  their  reconciliation  in  sound  and  sufficient  gov- 


1 6  The  Growth  of  Nationality 

ernment,  Jefferson  decidedly  favored  individualism,  and 
looked  with  apprehension  at  the  efforts  to  found  a  strong, 
central  authority.  He  himself  never  hesitated  to  use  the 
power  at  his  disposal, — as  in  the  purchase  of  Louisiana 
and  in  laying  an  embargo — and  yet  he  accepted  a  well 
ordered  and  comprehensive  government  with  distrust. 
He  did  not  see  clearly  that  personal  liberty,  if  it  is  truly 
the  liberty  of  all,  needs  at  many  points  the  restraints,  and 
in  many  ways  the  aid,  of  firm  and  adequate  law.  Mar 
shall  said  of  him  that  "  he  was  ready  to  increase  his  per 
sonal  power  at  the  cost  of  his  official  power."  Marshall 
distinctly  saw  that  well  defined  official  power  is  the  only 
true  expression  and  defence  of  personal  liberty — main 
taining  its  metes  and  bounds — and  that  personal  liberty, 
arbitrarily  asserted,  becomes  at  once  tyranny.  Liberty 
and  law  necessarily  enlarge  with  each  other  and  define  for 
each  other  the  terms  of  action. 

Jefferson,  looking  upon  the  Supreme  Court  as  the 
chief  instrument  in  completing  and  establishing  the 
General  Government,  said  of  it:  "  The  judiciary  of 
the  United  States  is  the  subtle  corps  of  sappers  and 
miners  constantly  working  underground  to  undermine  the 
foundations  of  our  confederated  fabric."  Randolph 
spoke  of  the  Supreme  Court  as  ' '  the  cave  of  Trophonius. ' ' 

Jefferson  and  Marshall,  administering  the  government 
in  its  executive  and  judicial  branches,  notwithstanding 
the  detached  character  of  their  duties,  came  readily  into 
collision.  Marshall  was  compelled,  during  most  of  his 
term  of  service,  to  encounter  in  the  executive  department 
a  temper  only  partially  concurrent  with  his  views,  and  to 
satisfy  himself  with  a  clear  enunciation  of  the  law  when 
unable  to  enforce  it.  In  the  case  of  Marbury  vs.  Madi 
son,  i  Cranch,  137,  he  administered  a  rebuke  to  Jefferson 


The  Supreme  Court  17 

and  Madison  for  retaining  a  commission  which  had  been 
made  out,  at  the  close  of  the  administration  of  John 
Adams,  for  Marbury  as  justice  of  the  peace,  but  had  not 
been  delivered.  In  the  trial  of  Burr,  Marshall  ordered 
the  presence  of  Jefferson  with  documents.  The  order 
was  disregarded.  In  the  case  of  Smith  vs.  Ogden,  Jef 
ferson  directed  the  cabinet  to  neglect  a  similar  summons.1 

Marshall's  service  as  chief-justice  was  the  more  difficult 
and  the  more  valuable  because  it  was  rendered  at  a  time 
when  the  executive  branch  of  the  government  was  strongly 
under  the  influence  of  conflicting  principles.  The  scope 
of  the  Constitution  and  its  adequacy  to  meet  the  ends  pro 
posed  by  it  were  still  to  be  established  ;  Marshall  held  the 
Supreme  Court  firmly  to  its  work.  Its  decisions  became 
relatively  numerous.  Of  the  1106  opinions  delivered 
during  his  term  of  service,  519  were  given  by  Marshall. 
Judge  Story,  who  had  been  appointed  as  a  representative 
of  the  Republican  party,  became  loyal  to  Marshall  and 
regarded  his  administration  as  the  crowning  period  of  the 
court.  Marshall's  influence  was  of  so  comprehensive, 
sober,  and  intellectual  an  order  as  to  make  it  irresistible 
with  a  bench  of  judges. 

§  5.  The  third  period  was  that  of  the  chief-justiceship 
of  Taney.  Though  this  period  did  not  have  the  same 
independent  importance  as  the  second  period,  it  still  sub 
served  a  distinct  and  valuable  purpose.  It  brought  for 
ward  correctives  and  qualifications  to  principles  that 
would  otherwise  have  become  too  absolute. 

Taney's  introduction  to  the  court  was  not  a  fortunate 
one.  President  Jackson,  in  his  hostility  to  the  Bank 
of  the  United  States,  ordered  Duane,  Secretary  of  the 
Treasury,  to  remove  from  the  Bank  the  deposits  of  the 

1  Henry  Adams,  History  of  United  States,  vol.  iii.,  p.  450. 


1 8  The  Growth  of  Nationality 

United  States.  He  declined  to  do  it,  and  Jackson  dis 
missed  him.  He  then  appointed  Taney,  Secretary  of  the 
Treasury,  and  Taney  removed  the  deposits.  When, 
several  months  later,  the  appointment  was  brought  before 
the  Senate,  the  Senate  refused  to  confirm  it.  This  led 
Jackson,  when  the  opportunity  was  offered,  to  appoint 
Taney  chief-justice. 

Taney  was  a  man  of  unusual  power  and  possessed  of  an 
astute,  legal  mind.  Marshall  had  done  his  work  wisely 
as  well  as  thoroughly,  and  there  was  no  reaction  against 
it.  Yet  Taney  directed  his  attention  more  explicitly  to 
the  rights  of  the  States  and  of  the  people.  While  it  was 
needful  that  an  adequate  rendering  should  first  be  given 
to  the  powers  of  the  General  Government,  and  to  the 
fundamental  principles  of  law  embodied  therein,  it  was 
equally  needful  that  the  fitting  limitations  of  these 
powers  should  be  laid  down.  In  the  case  of  Briscoe  vs. 
The  Bank  of  the  Commonwealth  of  Kentucky,  1 1  Peters, 
257,  he  held  that  the  States  could  incorporate  banks  of 
issue.  The  regulation  of  the  currency  was  a  function 
which  the  General  Government  had  not  yet  completely 
assumed ;  and  now  that  it  has  assumed  it,  has  found 
much  difficulty  in  discharging  it.  Taney  regarded  such 
functions  as  open  to  the  States  in  the  absence  of  any 
action  by  the  United  States. 

The  chief  question  which  arose  in  this  case  was  whether 
bank  bills  were  bills  of  credit,  included  under  the  restric 
tion  of  the  Constitution  which  prohibits  the  emitting  of 
such  bills  by  the  States.  In  an  earlier  case,  Craig  vs. 
State  of  Missouri,  4  Peters,  410,  in  which  the  opinion  of 
the  court  had  been  given  by  Marshall,  bank-notes  had 
been  included  in  the  definition  of  bills  of  credit.  The 
definition  had  run:  "  To  emit  '  bills  of  credit  '  conveys 


The  Supreme  Court  19 

to  the  mind  the  idea  of  issuing  paper  intended  to  circulate 
through  the  community  for  its  ordinary  purposes  of 
money,  which  paper  is  redeemable  at  a  future  day. ' '  The 
actual  decision  in  the  earlier  case  did  not,  however,  require 
so  broad  a  definition,  and  was  now  held  to  be  consistent 
with  the  narrower  rendering  of  the  court.  In  the  present 
case  the  question  was  again  raised,  and  the  words,  bills 
of  credit,  as  used  in  the  Constitution,  were  confined  to 
bills  issued  by  the  State  on  the  faith  of  the  State  and 
designed  to  circulate  as  money.  These  were  regarded  as 
differing  from  bank  bills  and  open  to  special  objection  on 
the  ground  that  no  adequate  provision  might  be  made 
by  the  State  for  their  payment,  and  that  there  was  no 
method  of  enforcing  payment  against  the  State. 

The  case  occurred  shortly  after  Taney  entered  upon 
his  duties.  The  opinion  of  the  court  is  regarded  as  due, 
in  a  considerable  degree,  to  his  influence.  Judge  Story, 
against  his  usual  custom,  filed  a  dissenting  opinion.  He 
referred  to  the  fact  that  the  case  had  been  previously 
argued  before  the  court,  and  that  the  opinion  of  the  court 
at  that  time,  sustained  by  the  opinion  of  Marshall,—  "  a 
name  never  to  be  pronounced  without  reverence  " — had 
been  against  the  constitutionality  of  bank-notes  issued  by 
State  institutions.  When  the  United  States  established 
national  banks,  it  prepared  the  way  for  the  new  bills,  not 
by  denying  the  right  of  the  States  to  charter  banks  of 
issue,  but  by  taxing  the  bills  of  such  banks  out  of  exist 
ence.  The  confusion  has  arisen,  in  large  part,  from  the 
inability  and  the  reluctance  of  the  General  Government 
to  take  to  itself,  and  to  exercise  fully,  its  function  of 
coining  and  regulating  money. 

The  most  marked,  and  a  more  favorable,  example  of  a 
service  rendered  by  Chief-Justice  Taney  was  the  restric- 


20  The  Growth  of  Nationality 

tion — we  shall  have  occasion  to  refer  more  fully  to  the 
case  later — which  he  brought  to  the  charters  of  corpora 
tions.  This  has  borne  important  fruit  in  restoring  to  the 
people  powers  that  had  inadvertently  slipped  from  them. 

The  chief-justiceship  of  Taney  extended  through  the 
most  critical  period  of  the  slavery  controversy.  He  did 
nothing  to  abate  the  tempest,  but  himself  rather  suffered 
shipwreck  in  it.  He  would  have  been  assigned  a  much 
higher  position  in  public  esteem  had  it  not  been  for  the 
Dred  Scott  decision. 

§  6.  The  fourth  period  extends  from  1864  to  the  pres 
ent  time.  Chase,  Waite,  and  Fuller  have  been  chief- 
justices.  The  constitutional  and  social  questions  of 
moment  that  have  come  before  the  court  have  been 
those  involved  in  reconstruction,  in  the  rights  of  corpora 
tions,  in  interstate  commerce,  and  in  the  comparatively 
new,  and  as  yet  perplexed,  problems  of  labor.  Though 
these  questions  may  at  times  have  seemed  less  critical, 
they  have  scarcely  been  less  comprehensive,  in  the  in 
terests  covered  by  them,  than  those  which  have  gone 
before. 

The  Supreme  Court  has,  in  this  period,  shown  less 
unanimity  of  opinion  than  in  its  earlier  history.  The 
dissent  has  been  frequent,  and  been  sustained  by  a  vigor 
of  argument  which  has  gone  far  in  weakening  the  force  of 
the  decisions.  The  presiding  judge  has  had  less  influence 
with  the  court.  In  the  Slaughter-House  cases,  the  very 
weighty  opinion  announced,  which  has  served  to  define 
the  relation  of  the  States  to  the  General  Government, 
was  given  by  Justice  Miller,  Chief- Justice  Chase  dissent 
ing.  He  sustained  a  similar  relation  to  the  decisions 
which  upheld  the  constitutionality  of  the  greenback  issue. 


CHAPTER  II 

Strife  between  the  States  and  the  United 
States 

§  i.  WE  shall  now  take  up  in  order  the  several  forms 
of  contention  which  arose  in  the  slow  growth  of  our 
nationality.  The  first  of  these  was  that  between  single 
States  or  groups  of  States  and  the  United  States.  The 
disposition  to  resist  the  General  Government  appeared 
on  a  great  variety  of  occasions,  and  extended  at  one  time 
or  another  to  almost  every  State.  The  States,  accus 
tomed,  during  a  long  period,  to  self-directed  and  com 
paratively  unconstrained  activity,  were  naturally  reluctant 
and  restive  units  in  the  new  organization.  It  was  un 
avoidable  that  considerable  time  should  be  consumed,  and 
much  friction  be  incurred,  in  defining  the  exact  relation 
of  the  States  to  the  General  Government,  and  in  accus 
toming  them  to  a  new  and  dependent  position. 

The  Whiskey  rebellion  of  1794,  which  assumed  con 
siderable  dimensions  and  received  the  support  of  some 
distinguished  men,  expressed  a  lawless  and  irresponsible 
temper  rather  than  any  definite  rejection  of  the  new 
authority.  This  rebellion,  like  Shay's  rebellion,  showed 
how  loosely  the  ties  of  Government,  even  in  the  States, 
were  resting  on  the  community.  No  considerable  danger 
could  be  met  or  pressure  incurred  without  arousing  rest 
lessness  and  resistance. 

§  2.  The  discrepancy  of  opinion  between  the  Federal- 

21 


22  The  Growth  of  Nationality 

ists  and  the  Republicans  led  to  a  corresponding  diversity 
between  them  in  their  national  sympathies.  England 
retained  a  strong  hold  on  the  Federalists,  while  France 
called  out  the  enthusiasm  of  the  Republicans.  The 
French  Revolution  was  at  once  so  promising  and  so 
disappointing  an  event  as  to  arouse  a  great  deal  of 
conflicting  and  vacillating  feeling  concerning  it.  Enthu 
siastic  natures,  cherishing  a  large  hope  for  the  race,  were 
laid  hold  of  as  by  a  new  force  in  human  history.  When 
the  lack  of  sober  and  practical  thought  in  the  guidance 
of  the  Revolution  became  evident,  and  it  began  to  fall 
headlong  into  the  tyranny  which  lies  in  the  path  of  a 
disproportionate  popular  movement,  the  conservative 
mind  first  withdrew  its  sympathy  from  it,  and  then  became 
actively  hostile  to  it. 

Jefferson  was  thoroughly  imbued  with  the  social  and 
civil  philosophy  of  France.  The  sweep  of  this  philosophy 
is  seen  in  our  Declaration  of  Independence.  It  tended 
to  an  extreme  individualism,  and  was  consonant  with  the 
feelings  of  those  to  whom  our  Revolution  was  a  social 
theory  on  the  one  side  and  a  lightening  up  of  disagree 
able  authority  on  the  other  side.  The  aid  which  France 
had  rendered  us  in  the  war  of  the  Revolution  imparted 
to  this  sympathy  of  the  Republicans  a  color  of  gratitude 
and  patriotism.  The  Republicans  were  slow  to  see  the 
drift  of  the  French  Revolution.  Even  the  tyranny  of 
Napoleon,  in  many  minds,  was  surrounded  by  a  nimbus, 
arising  from  the  fact  that  it  had  grown  up  as  the  ripe 
fruit  of  the  Revolution.  He  was  the  last  expression  of 
the  popular  will  and  the  enemy  of  hereditary  authority. 

The  Federalists,  on  the  other  hand,  notwithstanding 
the  alienation  of  the  war,  saw  much  to  admire  in  the 
English  Government,  a  government  that  was  slowly 


Strife  in  Connection  with  States        23 

coming  to  embody,  in  a  working  form,  both  strength  and 
liberty.  The  traditions  of  the  past  held  with  them.  In 
New  England  this  sentiment,  just  in  itself,  was  greatly 
strengthened  by  the  commerce  of  the  two  countries. 

During  the  first  twenty-five  years  of  our  national 
history  these  divisive  feelings  of  the  two  political  parties 
were  kept  active  and  constantly  played  upon  by  the  rapid 
and  startling  progress  of  events  in  Europe.  It  has  always 
called  for  no  little  penetration  to  see,  in  the  protracted 
struggle  between  England  and  France,  the  obscure, 
underlying  instincts  and  principles  on  which  it  rested— 
the  staid  conditions  of  order  and  growth,  on  the  one  hand, 
and  the  enthusiasm  of  opinion,  lapsing  into  irresponsible 
violence,  on  the  other.  Never  were  conflicting  tendencies 
more  commingled,  more  difficult  of  analysis,  or  more 
capable,  on  either  side,  of  unfair  presentation. 

The  two  combatants  were  slowly  driven  to  their  utmost 
effort;  and  were  neither  disposed,  nor  were  they  able,  to 
pay  much  regard  to  the  rights  of  neutrals,  whose  interests 
were  quite  secondary  to  those  involved  in  the  war.  All 
Europe  became  included  in  the  strife,  and  we  were  left 
alone  in  the  defence  of  international  law.  We  could 
compel  the  respect  of  neither  party.  It  was  easy  for 
either  of  the  two  political  parties  in  the  United  States  to 
reduce  somewhat  the  sense  of  injuries  suffered  from  the 
one  country  by  dwelling  upon  those  inflicted  by  the  other 
country. 

§  3.  The  French,  finding  themselves  widely  opposed  to 
existing  ideas  and  institutions,  and  seized  with  the  fervor 
of  a  new  crusade,  paid  little  regard  to  the  rights  of  other 
nations  which  in  anyway  interfered  with  their  immediate 
purpose.  It  was  a  rare  combination  when  the  headstrong 
force  of  a  revolution  passed  into  the  unscrupulousness  of 


24  The  Growth  of  Nationality 

a  great  military  leader,  and  the  primary  rights  of  men 
were  confused  once  more  with  the  claims  of  power.  From 
the  beginning  the  French  assumed  that  the  people  of  the 
United  States  would  fully  sympathize  with  them  and 
freely  contribute  to  their  success.  Their  agents  addressed 
themselves  directly  to  the  people,  and  showed  but  scant 
respect  for  the  Government.  The  United  States  was  to 
be  made  a  recruiting  ground  for  the  French  service. 

The  press  of  the  times  was  unscrupulous  and  violent. 
It  made  gross  and  unfounded  attacks  on  the  Administra 
tion.  These  onslaughts  were  the  more  dangerous  because 
of  the  inexperience  and  weakness  of  the  new  Government. 
Men  did  not  know  how  to  estimate  them.  As  yet  there 
was  no  history  to  oppose  to  them ;  no  dangers  that  had 
been  overcome,  no  trials  that  had  been  outgrown,  no 
successful  services  that  had  been  rendered,  no  patriotism 
that  had  been  accumulated.  Timidity,  distrust,  and 
aversion  were  still  felt  toward  the  central  authority. 

This  state  of  things  gave  rise,  in  1798,  to  the  alien  and 
the  sedition  laws,  designed  to  check  the  influence  of 
foreigners  and  restrain  the  license  of  the  press.  These 
laws  were  neither  unjustifiable  in  their  purpose  nor  ad 
ministered  with  special  harshness.  As  directed,  however, 
against  a  prevalent  party,  they  called  out  great  hostility 
and  gave  occasion  to  collective  resistance.  This  early 
effort  of  the  Government  to  defend  itself  became  the 
ground  of  a  still  more  direct  attack  upon  it.  This  opposi 
tion  expressed  itself  in  the  resolutions  of  1798  and  1799, 
passed  by  the  legislatures  of  Virginia  and  of  Kentucky. 
The  first  State  acted  under  the  influence  of  Madison, 
and  the  second  under  that  of  Jefferson.  The  Virginia 
resolutions  were  less  offensive  than  those  of  Kentucky, 
but  they  asserted  the  right  of  the  State  to  judge  infrac- 


Strife  in  Connection  with  States        25 

tions  of  the  Constitution,  and  to  resist  them.  These 
resolutions  were  sent  to  the  other  States  and  called  out 
counter  resolutions.  Some  preparation  for  resistance 
was  made  by  Virginia.  The  Kentucky  resolutions,  in 
general  tenure  the  same  as  those  of  Virginia,  affirmed 
more  distinctly  the  independence  of  the  State.  '  To 
this  compact  each  State  acceded  as  a  State  and  as  an 
integral  party ;  its  co-States  forming  as  to  itself  the  other 
party." 

These  resolutions  thus  brought  early  into  the  fore 
ground  an  idea  which  long  and  strongly  possessed  the 
public  mind,  and  arose  fresh  in  every  State  on  any  pro 
voking  cause — that  the  Government  was  a  compact  be 
tween  the  States,  and  not  an  independent  sovereign  power. 
Thus  Josiah  Quincy  of  Massachusetts,  in  1811,  said  in 
the  House  of  Representatives,  on  the  occasion  of  the 
proposed  erection  of  Orleans  into  a  State:  "  So  flagrant 
a  disregard  of  the  Constitution  would  be  a  virtual  dis 
solution  of  the  bonds  of  the  Union,  freeing  the  States 
from  their  bonds  to  each  other." 

Thus  the  Constitution  was  not  simply  a  contract  be 
tween  the  States,  but  one  which  could  be  set  aside  by 
any  single  State  when  any  action  of  the  General  Govern 
ment  was  regarded  by  it  as  an  infraction  of  the  reciprocal 
obligations.  Almost  any  policy,  unacceptable  to  any 
considerable  portion  of  the  people,  might  thus  be  made, 
and  was  often  made,  the  ground  of  a  resentful  denial  of 
the  claims  of  the  United  States  upon  the  several  States. 
The  growth  of  nationality  thus  became  slow  and  painful, 
and  was  in  constant  collision  with  local  interests  and 
attachments. 

The  resolutions  of  Virginia  and  of  Kentucky,  in  making 
each  State  a  judge  of  infractions  of  the  Constitution,  con- 


26  The  Growth  of  Nationality 

founded  a  revolutionary  with  a  constitutional  right.  The 
ultimate  defence  against  tyranny  is  the  right  of  the  people 
to  judge  and  set  aside  any  government;  but  no  govern 
ment  recognizes  within  itself,  as  a  part  of  its  own  safe 
guards,  such  a  provision.  A  revolutionary  right  is,  in  its 
exercise,  revolt. 

§  4.  In  1798,  we  had  reached  the  very  verge  of  war 
with  France.  Had  it  not  been  for  the  wisdom  and  for 
bearance  of  John  Adams,  which  met  with  but  slight  ac 
ceptance  in  his  own  party,  we  should  have  been  plunged 
into  conflict.  On  the  accession  of  the  Republicans  to 
power,  in  1801,  under  the  leadership  of  Jefferson,  great 
apprehension  was  felt  by  the  friends  of  the  Government. 
As  a  matter  of  fact,  however,  the  powers  of  the  Govern 
ment  were  not  only  not  reduced,  they  were  put  to  un 
usual  service.  Louisiana  was  purchased,  though  Jefferson 
confessed  that  he  found  no  right  conferred  in  the  Consti 
tution  for  such  an  acquisition.  The  purchase  met  the 
national  mind,  and  Jefferson's  suggestion  of  an  amend 
ment  to  the  Constitution,  conferring  the  needed  power, 
was  passed  lightly  by. 

The  chief  resistance  of  the  States  to  the  General  Gov 
ernment  during  the  administrations  of  Jefferson  and  of 
Madison  arose  from  their  different  sympathies  with  Eng 
land  and  with  France,  and  from  the  interests  involved 
therein.  Jefferson  was  disinclined  to  war.  He  was  no 
warrior,  and  was  on  principle  opposed  to  war.  He  held 
that  foreign  relations  could  be  controlled  by  means  of 
commerce — giving  or  withholding  trade  as  national  claims 
were  respected  or  disregarded.  He  had  fallen  on  a  very 
unfavorable  period  for  putting  to  the  test  so  pacific  a 
method.  He  strove  to  constrain  the  action  of  England 
by  laying  an  embargo,  which  fell  heavily  on  the  New 


Strife  in  Connection  with  States        27 

England  States.  The  Federalists  complained  bitterly  of 
the  measure  as  an  abuse  of  the  power  to  regulate  trade. 

Under  a  series  of  ineffectual  efforts  to  protect  our  rights 
as  neutrals,  we  drifted  into  the  war  with  England  of  1812. 
It  found  no  acceptance  in  New  England,  and  gave  rise 
at  once  to  a  collision  of  claims  between  the  States  and 
the  General  Government.  There  were  much  illicit  trade, 
and  much  indirect  aid  rendered  to  England.  The  war  was 
never  waged  with  unity  and  vigor.  It  called  out  no  en 
thusiasm  and  yielded  no  honor,  except  in  connection  with 
the  navy.  The  United  States  was  at  no  time  able  to 
secure  the  troops  called  for,  and  the  financial  breakdown 
was  complete.  At  the  close  of  the  war  the  United  States 
would  have  had  great  difficulty  in  resisting  a  vigorous 
attack.  It  must  have  sunk  under  an  energetic  prosecu 
tion  of  the  war  by  England,  if  the  necessity  itself  had  not 
sufficed  to  call  out  a  new  temper.  At  no  time  has  the 
Union  been  weaker.  The  Essex  Junta  in  Massachusetts 
arose  in  anticipation  of  a  dissolution.  Like  a  raft  that 
has  suffered  the  wrench  and  strain  of  rapids,  the  Govern 
ment  seemed  ready  to  fall  to  pieces  of  its  own  accord. 

§  5.  The  progress  of  a  war  so  distasteful  to  many  of 
the  people  gave  occasion  for  disloyal  and  divisive  acts  on 
the  part  of  the  States.  The  Senate  of  Massachusetts 
denounced  the  war  as  unrighteous.  Massachusetts  raised 
an  army  of  ten  thousand,  and  other  States  did  much  the 
same.  The  power  of  the  General  Government  "  to  pro 
vide  for  calling  forth  the  militia  "  and  for  "  organizing, 
arming,  and  disciplining  the  militia  "  was  a  special  object 
of  attack.  Governor  Strong  of  Massachusetts  declared 
that  it  belonged  not  to  Congress,  nor  to  the  President, 
but  to  the  governors  of  the  States  to  determine  when  the 
exigency  existed  that  justified  the  call;  that  the  right 


28  The  Growth  of  Nationality 

conferred  by  the  Constitution  to  call  out  the  militia  to 
repel  invasion  applied  only  to  actual  invasion.  The  Su 
preme  Court  of  Massachusetts  sustained  the  Governor. 
Governor  Chittenden  of  Virginia  recalled  the  militia  of 
the  State  from  the  national  service.  Thus  the  powers 
conceded  to  the  United  States  were  taken  back  once 
more  by  the  States.  The  General  Government  became  a 
helpless  instrument  to  which  they  yielded  less  or  more  as 
suited  them. 

Webster,  in  1814,  spoke  in  the  House  of  Representa 
tives  against  a  bill  to  encourage  enlistments  and  to  pro 
vide  for  a  draft.  Massachusetts  and  Connecticut,  on  the 
occasion  of  a  law  to  enlist  minors,  passed  acts  instructing 
judges  to  discharge  those  enlisted  without  the  consent  of 
parents,  and  subjecting  to  fine  and  imprisonment  those 
connected  with  the  enlistment. 

The  dissatisfaction  in  New  England  culminated  in  the 
Hartford  Convention.  A  convention  of  the  New  England 
States  was  recommended  by  a  committee  of  the  Legisla 
ture  of  Massachusetts.  The  recommendation  resulted, 
in  1814,  in  the  Hartford  Convention.  All  but  three  of 
the  delegates  were  from  Massachusetts  and  Connecticut. 
It  issued  a  manifesto  remonstrating  against  the  power 
assumed  by  the  United  States  in  calling  out  the  militia, 
and  proposed  constitutional  amendments.  Unmindful 
of  the  inconsistency  involved,  it  asserted  that  the  General 
Government  had  not  protected  the  States,  and  that  the 
States  should  be  allowed  to  appropriate  taxes  for  their 
own  defence.  The  State  had  the  right,  and  was  subject 
to  the  duty,  of  "  interposing  its  authority  "  for  the  pro 
tection  of  its  citizens  from  infractions  of  the  Constitution. 
Thus  the  disruptive  resolutions  of  Virginia  and  Kentucky 
were,  occasion  being  given,  echoed  back  from  Massa- 


Strife  in  Connection  with  States        29 

chusetts  and  Connecticut.  The  spirit  was  the  same  in 
the  two  cases,  though  the  pressure  came  from  opposite 
quarters. 

Delegates  were  sent  to  Congress  to  present  and  enforce 
these  views.  Before  they  had  accomplished  their  mis 
sion,  peace  was  concluded.  The  victory  of  New  Orleans 
cast  a  lurid  light  on  the  close  of  a  dark  day,  and  the 
now  insignificant  complaints  of  the  Hartford  Convention 
passed  out  of  the  public  mind  with  ridicule  and  indiffer 
ence.  That  two  States  should,  in  time  of  war,  by  secret 
convention,  have  adopted  measures  so  antagonistic  to 
any  central  authority,  was  a  painful  disclosure  of  the 
weakness  of  the  hold  of  the  General  Government  on  the 
public  mind.  The  bonds  of  national  life  had  hardly 
begun  to  form. 

§  6.  While  the  unreasonable  fears  and  exasperations  of 
political  parties  were  ready,  for  the  first  twenty-five  years, 
to  give  rise,  anywhere  and  everywhere,  to  impatience  and 
resistance,  local  causes  were  also  constantly  operative  to 
oppose  one  or  another  State  to  the  United  States.  The 
debts  owed  by  the  States  to  the  United  States,  under 
the  adoption  and  adjustment  of  debts  by  the  General 
Government  at  the  instigation  of  Hamilton,  were  never 
paid.  New  York  did  something,  in  the  construction  of 
fortifications,  to  meet  the  claims  against  it.  It  was  not 
possible  to  enforce  any  debts  against  a  State.  The  sense 
of  sovereignty  was  too  strong.  This  difficulty  showed 
itself  early  in  connection  with  the  provision  of  the  Con 
stitution  by  which  suit  could  be  brought  in  the  courts  of 
the  United  States  against  a  State  by  citizens  of  another 
State.  The  States  took  offence  at  this  unexpected  im 
position  of  new  responsibilities.  New  York,  Maryland, 
South  Carolina,  and  Virginia  had  acquiesced  in  a  sum- 


30  The  Growth  of  Nationality 

mons  of  this  kind.  Massachusetts  disregarded  it,  and 
proposed  an  amendment.  Georgia,  with  a  choleric  tem 
per  somewhat  habitual  with  her,  imposed  the  penalty 
of  death  on  any  in  her  jurisdiction  who  should  enforce 
such  a  process.  This  unwillingness  of  the  States  to  be 
arraigned  gave  rise  to  the  Eleventh  Amendment,  the  first 
one  that  sprang  from  a  special  occasion.  Thus  a  restric 
tion,  at  one  important  point,  was  laid  upon  the  United 
States  in  enforcing  justice.  The  States  gained  immunity 
for  offences  against  citizens;  and,  if  they  chose  to  exer 
cise  it,  the  power  of  repudiation.  Later,  when  certain 
States  purchased  the  debts  held  by  their  own  citizens 
against  other  States,  and  then  entered  suit  for  their  re 
covery,  their  claims  were  ruled  out  as  an  evasion  of  the 
amendment;  e.g.,  New  Hampshire  vs.  Louisiana  and 
others,  108  U.  5.,  76.  The  Eleventh  Amendment  was  in 
defeat  of  that  thorough  responsibility  of  the  States,  as 
members  of  a  nation,  to  the  citizens  of  that  nation,  which 
the  Constitution  was  designed  to  secure.  It  was  a  con 
cession  to  the  jealousy  of  the  States  in  reference  to 
their  own  sovereignty  and  individuality. 

§  7.  In  1778,  Gideon  Olmsted  and  three  others  were 
pressed  into  the  British  service  on  the  sloop  Active.  They 
mutinied  and  captured  the  sloop.  When  they  had  nearly 
reached  port,  the  armed  brig  Convention,  belonging  to 
Pennsylvania,  took  possession  of  the  sloop.  It  was 
brought  to  Philadelphia  and  condemned  as  a  prize.  One 
fourth  of  the  vessel  was  awarded  to  Olmsted  and  his 
companions,  one  fourth  appropriated  by  the  State,  and 
the  remainder  divided  among  the  crew  of  the  brig.  The 
case  was  carried  by  appeal  to  the  Congressional  Commit 
tee  of  the  Federal  Congress.  The  action  of  the  State 
court  was  reversed.  Judge  Ross,  of  the  Pennsylvania 


Strife  in  Connection  with  States        31 

court,  refused  to  recognize  the  award  of  the  Congressional 
Committee,  ordered  the  sloop  and  cargo  to  be  sold,  and 
the  proceeds  divided  as  indicated  by  the  first  decision. 
The  affair  gave  rise  to  embittered  discussion,  but  rested 
without  further  results  for  thirty  years.  In  1808,  Olmsted 
secured  a  writ  of  mandamus  from  the  Supreme  Court  of 
the  United  States.  The  State  militia  resisted  the  service 
of  the  writ,  and  not  till  a  posse  of  two  thousand  men  had 
been  called  out  could  it  be  enforced.  Pennsylvania  then 
fell  back  on  the  ineffectual  remedy  of  an  aggrieved  State 
— a  constitutional  amendment.  This  proposal  took  no 
hold  on  the  other  States,  not  suffering  under  a  similar 
irritation. 

§  8.  In  1819,  the  State  of  Ohio  levied  a  tax  of  $50,000 
on  the  branch  banks  of  the  Bank  of  the  United  States 
located  in  that  State.  When  the  payment  of  the  tax  was 
refused,  the  officers  of  the  State  broke  into  the  banks, 
carried  off  the  amount  of  the  tax,  and  lodged  the  money 
in  the  State  Treasury.  Suit  was  brought  against  the 
officers  of  the  State.  While  the  suit  was  in  progress,  the 
Legislature  of  the  State  assembled  and  affirmed  the  doc 
trine  of  the  Virginia  and  Kentucky  resolutions  of  1798. 
In  case  the  tax  was  refused  and  a  penalty  pressed  against 
the  officers  of  the  State,  they  were  forbidden  to  give  the 
banks  any  protection  whatever.  In  1820,  the  Bank  of 
the  United  States  was  outlawed  in  Ohio,  and  open  to  any 
man's  plunder. 

A  similar  strife  in  defence  of  the  banks  under  the 
patronage  of  the  State  was  going  on,  at  the  same  time, 
in  Kentucky.  The  State  banks,  with  no  reliable  basis, 
under  a  speculative  fever,  issued  a  large  amount  of  bills. 
For  a  time  these  notes  were  accepted  by  the  branch 
banks  of  the  United  States.  When  they  were  at  length 


32  The  Growth  of  Nationality 

refused,  bankruptcy  came  at  once,  and  the  universal  dis 
tress  was  ascribed  to  the  Bank  of  the  United  States, 
which  had  checked  the  dangerous  expansion.  Those 
who  had  occasioned  the  mischief,  so  wide-spread  and  ex 
treme,  referred  it,  not  to  their  own  action,  but  to  the 
arrest  that  action  had  suffered.  An  effort  was  made  by 
taxation  to  drive  the  branch  banks  from  the  State.  A 
bill  was  introduced  into  the  Legislature  to  make  void  all 
sales  of  property  under  an  execution  issued  in  behalf  of 
the  branch  banks.  The  State  courts  refused  to  support 
the  laws  passed  by  the  Legislature.  The  conflict  pro 
ceeded  till  new  courts  were  established,  and  the  judicial 
department  was  divided  against  itself  throughout  the 
State.  Not  till  the  election  of  1826  did  the  friends  of 
the  sure  and  substantial  ways  of  honesty  prevail. 

At  the  close  of  the  War  of  1812,  disintegration  between 
the  States  pressed  close  on  dissolution.  This  fact,  and 
the  utter  lack  of  financial  wisdom  which  characterized 
many  of  the  States,  led  to  action  as  much  at  war  with 
local  prosperity  as  with  the  general  strength.  As  far  as 
the  ultimate  safety  of  the  Union  was  concerned,  the 
unwise  policy  of  single  States  favored  it  rather  than  en 
dangered  it.  The  existing  bonds  were  so  lax  that  the 
immediate  strain  did  not  snap  them,  while  growing  ex 
perience  came  to  their  support  and  exposed  the  folly  of 
the  States. 

§  9.  It  was  not  unfortunate  that  the  administration  of 
the  government  fell  for  so  long  a  period  to  the  Republi 
cans.  They  learned  from  their  own  experience  the  need 
of  central  authority,  and  what  authority  was  gained  was 
gained  with  less  adverse  criticism.  Moreover  the  dis 
satisfaction  was  shifted  from  side  to  side,  from  place  to 
place,  and  was  not  left  to  accumulate  as  an  unredressed 


Strife  in  Connection  with  States        33 

grievance  at  any  one  point.  Much  that  was  condemned 
by  the  one  party  in  opposition  could  be  defended  by 
what  the  same  party  had  said  and  done  in  authority.  By 
a  change  of  parts,  the  discussion  was  thrown  backwards 
and  forwards  in  a  way  instructive  to  all.  Power  in  exer 
cise  is  sure  to  seek  preservation  and  extension.  It  was 
said  of  President  Monroe's  first  inaugural  that  it  was 
good  Federal  doctrine. 

At  the  close  of  the  war  with  England,  which  still  left 
us  in  possession  of  the  opportunity  of  national  life,  a 
reaction  arose  in  favor  of  the  General  Government.  It 
gave  rise  to  the  Whig  party.  The  chief  principles  of  the 
party  rested  on  a  more  forceful  expression  of  the  national 
impulse.  They  were  a  national  bank,  protection  of  home 
industries,  and  internal  improvements.  Henry  Clay  was 
the  leading  spirit  of  the  new  party.  He  was  a  man  of 
strong  national  and  patriotic  impulses,  eloquent  in  de 
bate,  and  possessed  of  an  attractive  personality.  He  was 
admirably  fitted  to  give  expression  to  the  new  temper. 

In  the  incipiency  of  the  movement,  he  had  the  power 
ful  support  of  John  C.  Calhoun.  Later,  this  was  with 
drawn,  as  it  became  apparent  that  the  slave  States  must 
suffer  from  the  policy  of  protection.  The  strong,  sombre 
character  of  Calhoun  fell  early  under  a  malign  shadow 
from  his  devotion  to  the  interests  of  slavery.  He  had  no 
longer  the  free  use  of  his  powers. 

The  case  was  somewhat  the  reverse  with  Daniel  Web 
ster.  At  first  he  hesitated  to  accept  the  protective  policy, 
and  afterward  became  its  warm  advocate.  As  Massachu 
setts  was  primarily  a  maritime  State,  it  had  no  occasion 
to  urge  protection.  When  the  doctrine  began  to  prevail, 
it  took  up  manufacture  more  extendedly,  and  so  found 
its  interests  associated  with  discriminatinduties. 


34  The  Growth  of  Nationality 

A  written  constitution  has  this  distinct  evil, — that  it 
gives  occasion  to  technical  discussions  as  to  whether  a 
given  power  is  contained  in  the  original  grant,  and  these 
discussions  obscure  the  more  important  question  whether 
the  given  power,  if  present,  can  be  advantageously  exer 
cised.  The  formal  inquiry  crowds  out  the  substantial 
one  of  the  wisdom  of  the  proposed  policy.  This  has  been 
illustrated  in  discussions  on  the  doctrine  of  protection. 
An  effort  was  early  made  to  disprove  the  right  of  Con 
gress  to  impose  protective  duties.  The  power  conceded 
to  Congress  to  lay  taxes  is  so  broad,  and  the  power  to  lay 
discriminating  duties  has  been  so  wrapped  up  in  this 
power,  that  the  effort  to  prove  its  unconstitutionality  has 
failed  and  been  abandoned,  with  the  exception  of  here 
and  there  a  doctrinaire.  The  question  whether  Congress 
might  wisely  impose  protective  duties  has  received  less 
thorough  consideration  because  of  the  victory  gained  as 
to  the  power  to  impose  them.  It  is  a  familiar  weakness 
in  human  affairs  that  the  power  to  do  a  given  thing  oper 
ates  as  a  motive  to  do  it.  Again  and  again  in  our  history 
the  familiar  right  and  necessity  of  taxation  have  hidden 
from  sight  some  vital  policy  not  necessarily  associated 
with  them. 

Protection,  when  applied  to  so  large  a  country  as  the 
United  States,  and  one  of  such  diverse  interests,  neces 
sarily  suffers  the  disadvantage  that  it  brings  out  these 
local  differences  and  turns  them  into  local  conflicts.  Pro 
tection  means  the  pursuit  of  one  interest  at  the  cost  of 
other  interests,  at  least  for  the  time  being.  When  the 
interests  that  are  cherished  and  those  that  are  burdened 
are  widely  separated  from  each  other,  and  are  the  control 
ling  industries  of  different  communities,  the  gains  that  are 
ultimately  to  accrue  to  the  less  favored  occupations  are 


Strife  in  Connection  with  States        35 

neither  obvious  nor  certain.  A  protective  policy,  there 
fore,  vigorously  pushed  in  behalf  of  local  wants,  may 
readily  evoke  an  opposition  at  once  reasonable  and  bitter. 
The  tariff  laws  of  1828  called  out  such  resistance  from 
South  Carolina — a  movement  led  by  Mr.  Calhoun.  The 
agriculture  of  the  South,  issuing  in  a  few  great  staples 
that  demanded  a  foreign  market,  had  nothing  to  gain 
and  much  to  lose  by  any  limitation  of  trade.  The  tariff 
of  1832  provoked  nullification. 

For  four  years  the  rights  of  the  States  under  the  Con 
stitution  came  before  the  public  in  hot  discussion.  The 
protective  policy  of  the  United  States  was  instituted  so 
early,  grew  by  such  insensible  degrees,  and  was  so  closely 
associated  with  taxation,  that  the  question  of  its  consti 
tutional  rightfulness  was  blurred.  It  now  gained  power 
because  of  the  local  resistance  offered  by  South  Caro 
lina.  Resolutions  introduced  by  Calhoun  into  the  Senate 
affirmed:  "  That  the  people  of  the  several  States  com 
prised  in  these  United  States  were  united  as  parties  to  a 
constitutional  compact  to  which  the  people  of  each  State 
acceded  as  a  separate  sovereign  community,  each  binding 
itself  by  its  own  particular  ratification ;  and  that  the 
union  of  which  the  said  compact  is  the  bond  is  a  union 
between  the  States  ratifying  the  same."  Calhoun  de 
duced  from  this  statement  the  constitutional  right  of  each 
State  to  interpret  for  itself  the  constitutionality  of  any 
act  of  the  General  Government,  and  to  nullify  the  act  if  it 
regarded  it  as  not  included  in  the  ceded  rights. 

Thus  a  doctrine  which  had  all  along  been  latent  in  the 
public  mind,  and  which  under  some  sudden  pressure  had 
frequently  gained  open  expression,  was  once  more  dis 
tinctly  enunciated,  thoroughly  discussed,  and  pushed  to 
a  decision.  The  historical  and  the  rational  basis  of  the 


36  The  Growth  of  Nationality 

Central  Government  was  once  more  reviewed.  The  fun 
damental  question  was  whether  the  United  States  was,  or 
was  not,  a  true  nation,  with  the  rights  incident  to  national 
life.  Mr.  Webster,  the  leading  figure  in  the  debate  in 
behalf  of  the  national  idea,  rejected  the  notion  of  a  com 
pact  of  the  States,  and  became  "  the  defender  of  the 
Constitution  "  as  the  organ  of  the  popular,  national  life. 
The  fact  of  a  written  constitution,  enacted  by  the  media 
tion  of  the  States,  tended  to  disguise  its  truly  independ 
ent,  organic  character.  Either  rendering  was  historically 
open,  though  the  two  renderings  were  by  no  means 
equally  germane  to  the  facts  and  to  the  necessities  of 
the  case.  It  is  incident  to  a  written  constitution  that 
discussion,  under  any  new  exigency,  is  likely  to  turn  on 
the  comparatively  barren  verbal  interpretation  of  a  docu 
ment  rather  than  on  the  truly  succulent  question  of  the 
necessities  of  the  case.  We  have  wasted  an  immense 
amount  of  acumen  in  the  refinements  of  constitutional 
law  which  might  much  better  have  been  directed  to  the 
welfare  of  the  nation. 

In  the  development  of  the  United  States,  either  idea 
might  have  prevailed.  The  people  could  have  affirmed 
themselves  a  nation  or  a  confederacy  of  States.  The  im 
plications  of  the  two,  in  reference  to  national  growth,  are 
very  different.  The  one  makes  way  for  national  impulses, 
the  other  retards  them  at  every  step.  Calhoun's  resources 
lay  in  a  close  rendering  of  all  the  circumstances  which  at 
tended  on  the  formation  of  the  General  Government ;  in 
the  fact  that  the  States  were  the  intermediate  terms  be 
tween  the  people  and  the  Constitution,  both  in  its  for 
mation  and  adoption,  and  in  the  fact  that  the  powers 
delegated  to  the  General  Government  were  so  carefully 
enumerated,  as  well  as  the  limitations  laid  upon  them. 


Strife  in  Connection  with  States        37 

The  unspecified  powers,  the  undefined  areas,  remained 
with  the  local  governments.  The  States  lost  none  of 
their  identity  and  held  tenaciously  to  their  sovereignty  in 
the  transaction.  The  States  neither  fully  understood  the 
weight  of  the  blow  they  were  dealing  to  their  own  inde 
pendence  in  establishing  the  General  Government,  nor 
would  they,  if  it  had  been  distinctly  before  them,  have 
submitted  to  the  concession.  The  Constitution  was 
capable,  from  the  very  beginning,  of  being  regarded  in 
diverse  lights,  and  was  so  regarded  by  different  portions 
of  the  people.  The  apprehension  and  aversion  which 
the  Republicans  felt  toward  the  new  government  showed 
a  keen  sense  of  the  disagreeable  possibilities  which  were 
contained  in  it.  The  new  germ  might  be  kept  cut  back, 
or  it  might  run  up  and  overshadow  all  previous  growth. 

The  ^sources  of  Webster  were  found  in  the  undeniable 
necessitj^nd  fitness  of  national  life,  and  in  the  seeds  of 
that  life  which  had  been  so  deeply  hidden  in  the  Consti 
tution.  National  growth  could  be  secured  and  its  princi 
ples  interpreted  in  no  other  way.  The  constructive  idea 
prevailed,  and  has  become  increasingly  the  thought  of  the 
people.  The  people  have  come  to  think  and  feel  and  act 
collectively,  and  not  by  States.  In  that  debate,  and  in 
the  events  which  accompanied  it,  we  doubled  the  point 
of  danger  so  far  as  State  nullification  was  concerned.  We 
should  have  reached  quiet  waters  had  not  the  strife  taken 
on  a  new  form  in  connection  with  slavery.  This  was  not 
a  rejection,  under  mere  local  interest,  by  one  or  more 
States  of  some  particular  rendering  of  the  Constitution, 
but  the  growth  of  antagonistic  social  institutions  between 
large  sections  under  it. 

§  10.  On  the  passage  of  the  protective  act  of  1832, 
South  Carolina  in  convention  passed  an  ordinance  of 


38  The  Growth  of  Nationality 

nullification.  Should  the  United  States  undertake  to 
levy  in  South  Carolina  the  duties  now  laid,  "  the  people 
of  the  State  would  hold  themselves  absolved  from  all 
further  obligation  to  maintain  or  preserve  the  political 
connection  with  the  people  of  the  other  States."  The 
Legislature  proceeded  to  enact  the  laws  necessary  to  give 
effect  to  the  ordinance,  and  the  Governor  accepted  the 
services  of  volunteers.  President  Jackson  rendered  the 
nation,  in  this  emergency,  a  most  acceptable  service. 
Jackson,  though  incapable  of  distinguishing  perfectly  be 
tween  his  own  passions  and  prejudices  and  the  public 
welfare,  was  none  the  less  thoroughly  patriotic.  Full  of 
fire,  and  commanding,  even  by  his  faults,  the  popular 
sympathy,  he  was  not  easily  to  be  thwarted.  His  oppo 
sition  to  a  national  bank,  though  not  well  sustained  in 
theory  and  united  to  much  personal  feeling,  relieved  us 
of  what  was  becoming,  and  threatened  still  more  to 
become,  a  snare  to  the  nation. 

Jackson  had  shown  so  much  sympathy  with  the 
Southern  States,  especially  with  Georgia,  that  a  like  at 
titude  was  expected  toward  South  Carolina.  He  had 
not  hesitated  to  narrow  in  the  national  authority  when 
his  own  convictions  of  the  interests  of  the  South  were 
involved.  It  did  not,  however,  increase  the  favor  felt  by 
him  toward  South  Carolina  that  she  was  under  the  lead 
of  Calhoun,  who  had  become  obnoxious  to  Jackson. 
Jackson  adopted  at  once  an  energetic  policy.  He  issued 
a  proclamation  declaring  the  action  of  the  State  "  in 
compatible  with  the  existence  of  the  Union,  contradicted 
expressly  by  the  letter  of  the  Constitution,  unauthorized 
by  its  spirit,  inconsistent  with  every  principle  on  which 
it  was  founded,  and  destructive  of  the  great  object  for 
which  it  was  formed."  This  firm  attitude  of  Jackson 


Strife  in  Connection  with  States        39 

put  a  new  color  on  the  action  of  the  State.  A  disastrous 
failure  became  imminent.  Clay,  with  that  conciliatory 
temper  which  characterized  him,  secured  some  modifica 
tion  of  the  offensive  tariff,  and  this  was  made  the  occa 
sion  of  a  retreat  on  the  part  of  South  Carolina. 

This  action  of  South  Carolina  was  the  high-water  mark 
of  the  refractory  temper  in  single  States.  Our  national 
life  ceased  to  be  threatened  by  the  flying  off,  here  and 
there,  of  single  portions  of  the  whole. 

§  11.  The  controversy  with  Georgia,  which  also  oc 
curred  under  the  administration  of  Jackson,  had  a  very 
different  issue.  Georgia,  with  slavery,  found  the  neigh 
borhood  of  the  Creeks  and  Cherokees  disagreeable  to  her; 
she  also  coveted  the  lands  held  by  them  under  treaty  with 
the  United  States.  She  trespassed  on  Indian  territory, 
and  was  checked  by  John  Q.  Adams.  Congress  took  no 
action  to  sustain  the  President.  When  Jackson  succeeded 
to  power,  he  was  not  disposed  to  enforce  the  rights  of  the 
Indians  as  against  the  State.  The  war  in  Florida  against 
Indians  arid  runaway  slaves  had  been  conducted  by  Jack 
son  with  arbitrary  energy,  and  served  to  strengthen  in 
him  the  Southern  view  of  the  subject.  Telfair,  an  early 
governor  of  Georgia,  had  declared  that  Georgia  would 
recognize  no  treaty  with  the  Indians  in  connection  with 
which  the  commissioners  of  the  State  had  not  been  con 
sulted.1  She  attacked  the  Creeks  while  at  peace,  and  ex 
tended  her  laws  over  Cherokee  territory.  An  Indian  was 
arrested  under  a  Georgia  warrant  for  killing  an  Indian  on 
Cherokee  lands.  He  was  condemned  to  be  hung.  The 
case  was  brought  by  writ  of  error  before  the  Supreme 
Court  of  the  United  States.  Georgia  paid  no  attention 
to  the  writ,  and  hung  the  Indian. 

1  Hildreth's  History  of  the  United  States,  vol.  iv.,  p.  446. 


40  The  Growth  of  Nationality 

Samuel  A.  Winchester  of  Vermont,  a  missionary  to  the 
Cherokees  under  the  direction  of  the  American  Board, 
was  sentenced,  for  instruction  given  to  the  Indians,  to 
four  years'  imprisonment.  The  case  was  brought  before 
the  Supreme  Court  of  the  United  States.  The  sentence 
was  pronounced  illegal.  The  Governor  of  Georgia  de 
clared  that  he  would  hang  him  rather  than  surrender 
him.  He  remained  in  prison  eighteen  months  after  the 
decision  against  the  right  of  the  State,  Winchester  vs. 
Georgia,  6  Peters,  515.  It  was  in  reference  to  this  case 
that  Jackson  was  reported  to  have  said,  "  John  Marshall 
has  made  his  decision;  now  let  him  enforce  it." 

This  was  an  instance  of  lawlessness  rather  than  of  a 
professed  effort  to  restrict  the  Constitution.  The  im 
pudence  of  the  State  and  the  irresponsibility  of  the  Presi 
dent  were  conspicuous,  but  they  did  not  rest  so  much  on 
a  constitutional  principle  as  upon  the  wants  of  a  cherished 
institution. 

§  12.  As  the  slavery  controversy  became  absorbing, 
the  modifications  of  the  Constitution  were  sought  pri 
marily  in  the  interests  of  that  institution.  The  question 
no  longer  lay  between  sporadic  impulses  and  national  life, 
but  as  to  what  the  form  of  that  life  should  be.  The  Su 
preme  Court  of  the  State  of  Wisconsin,  notwithstanding 
the  decision  of  the  Supreme  Court  of  the  United  States, 
— Ableman  vs.  Booth,  21  Howard,  506, — pronounced  the 
Fugitive  Slave  Law  unconstitutional.  The  officers  of  the 
State  and  of  the  United  States  became  involved  in  a 
conflict  of  authority  that  admitted  of  no  legal  adjust 
ment.  It  was  a  case,  however,  in  which  the  foundations 
of  moral  law,  as  well  as  of  constitutional  law,  were  being 
called  in  question.  The  wider  issue  and  the  narrower 
issue  were  included  in  each  other.  The  safety  of  the 


Strife  in  Connection  with  States        41 

nation  turned  on  the  soundness  of  its  ethical  purposes. 
The  foundations  of  social  life  were  being  broken  up  and 
relaid.  In  accomplishing  this  great  change  the  Constitu 
tion  necessarily  suffered  much  strain,  though  the  throes 
of  the  people  were  primarily  those  of  establishing  right 
eousness  and  liberty  in  the  land.  The  conflict  drew  forth 
from  a  convention  held  in  Wisconsin  resolutions  similar 
to  those  of  1798. 

The  single  cases  in  which  the  States  continued  to  set  at 
naught  the  General  Government  were  of  secondary  mo 
ment.  The  temper  of  resistance  was  disappearing,  and 
the  overshadowing  force  of  the  national  life  was  more  and 
more  felt.  In  December,  1837,  the  steamboat  Caroline, 
engaged  in  a  marauding  expedition  directed  against 
Canada,  was  captured  on  the  American  shore  by  a  British 
force.  Later,  Alexander  McLeod  was  arrested  in  New 
York  as  engaged  in  this  act.  The  British  Government 
avowed  the  capture  as  a  public  measure  under  its  own 
orders,  and  requested  the  release  of  McLeod.  Webster, 
Secretary  of  State,  concurred  in  the  justice  of  this  claim, 
and  communicated  his  decision  to  the  Governor  of  New 
York.  The  claim  was  disregarded  by  the  courts  of  the 
State,  and  a  national  interest  thus  taken  from  the  control 
of  the  officers  to  whom  it  belonged. 

§  13.  We  are  to  bear  in  mind  that  the  States  started, 
under  the  new  Constitution,  in  full  possession,  each  by 
itself,  of  a  government  adequate  for  all  ordinary  civic 
purposes;  a  government  to  which  they  were  strongly 
attached,  and  with  which  their  political  action  was  almost 
exclusively  associated.  It  was  not  easy  for  them  either 
to  understand  or  to  accept  the  concessions  involved  in  the 
new  organization.  They  only  became  slowly  aware  of 
the  many  restrictions  they  had  incurred.  Following  the 


42  The  Growth  of  Nationality 

lead  of  previous  experience  and  familiar  sentiment  they 
were  sure  to  go  wrong. 

They  were  especially  disposed  to  lay  taxes  which 
affected  adjoining  States.  Intercourse  was  so  constant 
between  the  States  that  almost  any  impost  was  sure  to 
put  either  the  citizens  of  the  State  laying  it  to  a  disad 
vantage  in  trade,  or  to  travel,  in  its  effects,  in  an  uncon 
stitutional  way,  beyond  the  State.  Justice  Miller,  in  his 
Lectures  on  the  Constitution,  says  "  There  are  laws  on  the 
statute-books  of  nearly  every  State  in  violation  of  the 
Constitution  in  connection  with  taxes.  It  has  been  ne 
cessary  for  the  States  to  abandon  the  field  of  imposts  to 
the  General  Government." 

The  States  have  also,  in  neglect  of  the  theory  of  the 
Constitution,  continued  to  give  terms  of  naturalization; 
and  terms  much  more  lenient  than  those  of  the  United 
States.  Foreigners  have  found  their  way  into  citizen 
ship,  not  simply  by  the  one  door  provided  by  the  General 
Government,  but  by  the  many  easily  opened  doors  pro 
vided  by  the  States.  A  result  has  been  that  the  highest 
franchise  of  an  American  citizen,  the  right  to  vote,  has 
been  freely  exercised  by  those  still  aliens  under  the  laws 
of  the  United  States.  The  electors  in  each  State  of  the 
members  of  the  House  of  Representatives  have  the  quali 
fications  of  the  electors  in  the  several  States  of  the  most 
numerous  branch  of  the  legislature.  Thus,  though  the 
defining  of  the  conditions  and  rights  of  citizenship  is  one 
of  the  most  sovereign  acts  of  a  nation,  it  has,  in  the 
United  States,  been  left  subject  to  the  caprice  of  States 
whose  primary  purpose  has  often  been  the  simple  desire 
to  encourage  immigration.  The  States  have  determined 
their  own  electors,  and  the  national  and  local  elections 
have  gone  forward  together  under  this  provision. 


Strife  in  Connection  with  States        43 

A  still  more  marked  case  of  a  quiet  retention  by  the 
States  of  powers  which  they  had  been  accustomed  to  ex 
ercise,  but  which  were  placed  by  the  Constitution  in  the 
hands  of  the  General  Government,  were  those  connected 
with  the  currency.  The  most  critical  part  of  a  currency 
are  the  bills  of  credit  with  which  it  may  be  associated. 
The  States  were  expressly  forbidden  to  issue  bills  of 
credit.  Yet  a  currency  most  untrustworthy  and  disas 
trous  in  its  results  prevailed  many  years  in  the  United 
States,  because  Congress  confined  its  action  to  the  regu 
lation  of  coin,  and  left  the  States,  through  banks  that 
owed  their  rights  to  the  States  alone,  to  issue  bank  bills 
under  very  insufficient  restrictions.  The  question  was 
held  under  protracted  discussion  as  to  what  was  meant 
by  bills  of  credit  in  the  Constitution  ;  whether  the  phrase 
did  or  did  not  include  bills  issued  by  banks  incorporated 
by  the  States. 

When,  in  1863,  the  United  States  took  possession  of 
its  own  field  by  the  establishment  of  national  banks,  it 
itself  bore  the  appearance  of  an  intruder,  and  drove  out 
the  real  intruders  by  the  modest  method  of  a  tax. 

The  General  Government  could  not,  at  its  formation, 
habilitate  itself  at  once  with  its  full  complement  of  pow 
ers;  nor  were  the  States,  in  their  quasi-sovereignty,  ready 
to  yield  these  powers.  In  no  case,  however,  did  the 
delay  become  disastrous,  or  materially  alter  the  drift  of 
events.  Kindred  circumstances  and  a  kindred  temper  in 
the  several  States  secured  the  public  safety.  The  im 
perfection  of  method  lay  quite  as  much  in  the  easy-going 
character  of  the  people  as  in  any  deficiency  in  the  Govern 
ment.  The  new  questions  which  should  have  been  raised 
were  not  raised,  because  the  necessity  had  not  become 
urgent,  nor  the  general  mind  prepared  for  them.  The 


44  The  Growth  of  Nationality 

General  Government  grew  into  strength  as  the  need  of 
that  strength  became  apparent. 

The  open  resistance  that  was  offered  to  the  authority 
of  the  United  States  failed  of  any  serious  results ;  chiefly 
because  the  interests  which  called  it  out  were  so  local  and 
transient.  No  general  feeling  or  concert  of  action  was 
involved  in  them.  The  current  flowed  on  and  left  the 
petty  grievance  stranded  behind  it. 

On  the  other  hand,  the  national  life  inevitably  gained 
momentum  with  the  advance  of  years.  Intercourse 
widened  ;  commercial  interests  were  multiplied  and 
strengthened  ;  the  thousand  affiliations  of  social  and 
political  life  became  more  apparent  and  controlling.  The 
great  political  interests  that  slowly  gathered  about  the 
Central  Government  and  accumulated  under  its  shadow 
made  themselves  felt  as  an  offset  against  local  feeling. 
While  the  formation  of  the  United  States  gave  occasion 
to  national  life,  the  national  life  outstripped  the  occa 
sion  and  built  the  people  together  in  the  natural  integrity 
of  their  interests  and  temper.  The  ties  of  commerce 
were  the  bonds  which  longest  resisted  the  social  repulsion 
between  the  North  and  the  South;  but  these  ties  them 
selves  had  been  restricted  to  a  narrow  traffic  rather  than 
been  left  to  form  that  intricate  network  of  dependencies 
which  unite  free,  active,  and  similar  communities  to  each 
other. 

So  much  has  the  balance  of  importance  between  the 
United  States  and  any  one  of  its  constituent  States  been 
settled  by  the  progress  of  events,  that  we  are  no  longer 
in  danger  of  smothering  the  national  life  by  local  govern 
ments;  but  of  overshadowing  and  dwarfing  local  govern 
ments  by  the  national  life.  Thus,  in  the  disturbance  in 
Chicago,  in  1894,  the  national  forces  appeared  almost  at 


Strife  in  Connection  with  States        45 

once  upon  the  scene  in  suspension  of  State  authority. 
While  we  fee]  that  the  formation  of  the  General  Govern 
ment  served  to  remove  obstructions  in  the  current  of 
national  life  which  would  have  checked,  and  might  have 
even  diverted,  its  waters,  we  are  compelled  also  to  feel  that 
the  results  which  we  to-day  behold  in  the  strength  and 
unity  of  the  people  of  the  United  States  have  been 
chiefly  due  to  the  vigorous  social  seeds,  the  new  spiritual 
potentialities,  which  had  been  planted  in  virgin  soil  on  an 
unoccupied  continent.  Such  a  life  as  this  swept  steadily 
and  certainly  aside  all  obstructions.  It  pushed  toward 
the  light  so  abundant  in  the  heavens  above  it. 


CHAPTER   III 

Strife  between  Groups  of  States  for  Control 

§  I.  A  SECOND  contention  slowly  gathering  force,  that 
put  in  peril  our  national  development,  lay  between  groups 
of  States,  each  group  with  contiguous  territory,  with  dis 
tinct  and  well-defined  interests.  They  sought  for  the 
possession  of  the  General  Government,  and  for  its  con 
trol  in  behalf  of  their  own  social  and  political  policy.  A 
deep  separation  of  interests  and  principles  underlay  the 
contention.  The  distinguishing  feature  in  the  one  group 
was  slavery,  and  in  the  other,  freedom.  This  difference 
became  ever  more  observable  in  the  progress  of  years, 
and  carried  with  it  many  other  differences. 

The  Southern  States  were  agricultural,  producing  a 
few  great  staples — tobacco,  cotton,  sugar,  rice.  Society 
tended  with  them  to  a  strong  division  of  classes,  and  to 
the  vesting  of  social  and  political  power  in  the  hands  of 
slaveholders.  The  Northern  States  were  diversified  in 
their  pursuits.  They  added  commerce  and  manufacture 
to  agriculture.  Influence  and  wealth  were  subdivided. 
The  lines  dividing  classes  were  less  deep  and  more  change 
able.  The  popular  tendency  was  toward  a  pure  democ 
racy.  The  aristocratic  temper  was  shifting  and  suffered 
new  forms  of  contradiction.  The  development  of  the 
Northern  States  rendered  slavery  more  and  more  im 
possible. 

Georgia  and  South  Carolina  were  the  supporting  pivot 

46 


Strife  between  Groups  of  States         47 

of  slavery.  Though  Georgia,  at  the  outset,  under  the 
influence  of  Oglethorpe  and  of  the  Moravians,  accepted 
slavery  with  reluctance,  it  found  such  immediate  support 
in  the  climate  and  in  the  character  of  the  agriculture 
suited  to  the  conditions  of  the  people;  it  gave  rise  to  so 
many  distinctions  in  society  which,  once  accepted,  were 
not  easily  altered,  that  it  struck  deep  in  the  soil  and 
obtained  rank  growth.  These  States,  having  once 
adopted  slavery,  never  hesitated  in  its  support.  It  soon 
became  the  one  ruling  consideration  in  the  framework 
of  society.  Its  abolition  would  have  meant  complete 
reconstruction. 

§  2.  These  differences  in  conditions  and  pursuits  be 
tween  the  two  sections,  powerful  in  themselves,  carried 
with  them  increasingly  results  not  to  be  altered  or  over 
come.  They  were  hardly  capable  of  modification  other 
wise  than  by  revolutionary  violence.  The  adjustments 
made  in  the  States  in  reference  to  slavery  all  occurred 
early,  and  were  in  general  fulfilment  of  the  forces  in 
volved  in  their  development.  Slavery  was  not  strongly 
rooted  in  the  States  in  which  it  was  abolished. 

An  economic,  social,  and  political  life  suited  to  slavery 
sprang  up  at  once  with  it.  Slavery  necessarily  begets  a 
self-asserting  and  exacting  temper.  It  gives  a  ruling 
class,  and  leisure  for  the  exercise  of  the  powers  it  con 
fers.  Those  who  have  accepted  the  situation  must  be 
unscrupulous  in  maintaining  it.  Slavery  is  not  an  insti 
tution  consistent  with  open  ideas.  The  diversified  and 
exacting  industries  of  the  North  gave  rise  to  very  different 
social  conditions.  The  people,  intensely  occupied  with 
their  private  concerns,  full  of  personal  anxieties,  had  little 
leisure  for  public  affairs,  and  lost  aptitude  in  connection 
with  them.  This  extreme  individualism,  both  during 


48  The  Growth  of  Nationality 

and  since  the  slavery  controversy,  has  been  in  the  North 
a  steadily  perverting  tendency  in  politics.  Separate  de 
velopment  has  outstripped  and  overshadowed  collective 
development.  Northern  statesmen,  when  brought  in 
contact  with  Southern  statesmen,  were  feeble  antagonists. 
They  lacked  discipline,  a  single  idea,  and  an  overruling 
passion.  The  superior  social  status  which  lay  back  of  the 
representatives  of  the  North  was  more  than  compensated, 
in  the  contact  of  the  two  interests,  by  the  much  greater 
concentration  of  purpose  in  the  South,  and  by  a  political 
habit  which  sufficed  always  to  keep  the  strong  men  in  the 
foreground.  In  form  the  South  was  as  much  superior  to 
the  North  as  was  the  North  to  it  in  ultimate  force. 

§  3.  The  new  Constitution  dealt  gingerly  with  the  sub 
ject  of  slavery.  The  conditions  were  not  such  as  to  admit 
of  any  independent  treatment.  In  a  spirit  more  scrupu 
lous  than  conscientious,  more  sagacious  than  wise,  it 
avoided  all  direct  mention  of  slavery.  It  gave  the  ques 
tion  as  far  as  possible  the  go  by  and  left  its  difficulties 
charged  up  against  the  future.  It  adjusted  the  political 
relations  which  involved  it  in  a  spirit  of  compromise, 
conceding  and  demanding  as  little  as  possible.  Repre 
sentation  could  be  determined  only  by  some  estimate  of 
population.  Entire  consistency  in  the  social  polity  of  the 
South  would  have  carried  with  slavery  a  recognition  of 
the  slave  as  property,  subject,  therefore,  to  taxation  ;  and 
a  denial  to  him  of  citizenship,  and  therefore  of  the  right 
of  representation.  But  this  was  a  conclusion,  in  its  politi 
cal  results,  in  no  way  satisfactory  to  the  South.  The 
South  wished  the  slaves,  in  reference  to  itself,  to  count 
as  property;  in  reference  to  the  North,  as  population. 
The  compromise,  so  called,  consisted  in  allowing  three 
fifths  of  the  slaves  to  be  included  in  the  basis  of  repre- 


Strife  between  Groups  of  States         49 

sentation ;  and  also  to  be  embraced  in  the  apportionment 
of  direct  taxes.     The  concession  lay  chiefly  with  the  free 
States.     The  slave  constituted  no  portion  of  the  citizens 
of  the  United  States.     The  slave  States  purchased  ex 
tended  and  permanent  power  by  incurring  the  liability 
to  heavier  taxation.     This  unfair  balance  of  power  be 
came,   as  the  conflict  increased  in  intensity,   a  growing 
source  of  dissatisfaction  to  the  North.     The  compromise 
itself,  by  establishing  an  unjust  relation,  settled  into  an 
irritation.      The   political    influence    of  the   master  was 
much  increased  by  the  slave,  and  yet  that  influence  was 
used  constantly  against  him.     The  master  appropriated 
the  citizenship  of  the  slave  as  he  appropriated  everything 
else  pertaining  to  him.     The  slave  was  made  to  aid  in  his 
own  enslavement.     The  same  firmness  on  the  part  of  the 
slave  States  that  led  to  this  compromise  enabled  them  to 
escape,  for  the  most  part,  the  slight  concession  involved 
in  it.     Direct  taxes  were  rarely  laid  in  the  early  history 
of  the  United  States.     This  clause  doubtless  became  one 
reason  among  other  reasons  why  the  burdens  of  the  Gov 
ernment  have  been  so  uniformly  placed  upon  products. 
The  inequalities    of   taxation    incident   to  imports  have 
found  no  correction  in  taxes  apportioned  to  ability.     The 
first  wrong  begot  a  crop  of  secondary  wrongs. 

A  compromise  which  involves  a  moral  principle  prom 
ises  no  success.  We  can  divide  and  concede  interests, 
but  not  obligations.  Three  fifths  of  an  injury  remains  a 
complete  injury.  Moral  relations  hold  firm,  and  are  sure 
at  some  new  point,  in  some  fresh  way,  to  become 
troublesome.  Like  the  ghost  in  Hamlet,  they  pursue 
you  underground  as  you  move  away  from  them.  This 
compromise  became  an  inflamed  centre  at  which  the 
economic  and  social  irritations  incident  to  the  strife 


50  The  Growth  of  Nationality 

gathered,  till  the  composite  evil  issued  in  civil  war.  It  is 
impossible  to  say  whether  this  concession  of  our  fathers 
was  wise  or  unwise.  It  was  inevitable.  The  issues 
between  slavery  and  freedom  were  not  fully  made  up. 
We  accumulated  preliminary  grievances,  we  opened  the 
battle  and  fought  it  through,  all  because  of  the  slowness 
of  our  minds  and  the  hardness  of  our  hearts.  This  we 
were  compelled  to  do;  this  lay  in  the  circumstances,  and 
it  is  impossible  to  delineate  with  accuracy  the  distressing 
events  which  would  have  followed  any  other  line  of  action. 
We  deferred  a  strife  we  were  not  yet  prepared  to  push 
to  its  conclusion.  Any  action  which  presupposes  clearer 
spiritual  light  was  not  then  possible  to  us ;  and  any  action 
in  the  dim  twilight  that  enveloped  us  would  have  had  its 
own  retributions.  We  pursued  a  great  end  by  such 
means  as  were  open  to  our  conjoint  moral  capacity.  We 
have  still  to  wish  that  later  crises  may  show  more  com 
prehension. 

§  4.  The  social  and  political  conflicts,  between  the  two 
groups  of  States,  involved  in  the  question  of  slavery,  ex 
tended  from  the  origin  of  the  Government  to  the  close  of 
the  Civil  War,  and  have  since  been  followed  by  a  series 
of  secondary  adjustments  still  approaching  completion. 

This  period  of  conflict  may,  for  purposes  of  comprehen 
sion,  be  divided  into  three  portions,  flowing  into  each 
other  without  dividing  lines.  The  earliest  period,  from 
1789  to  1820,  was  one  of  disclosure;  one  in  which  the 
bearings  of  slavery  became  visible  and  undeniable.  The 
tendencies  contained  in  it  and  the  direction  it  would  give 
to  our  national  development  were  no  longer  matters  of 
conjecture,  of  hope,  or  of  fear. 

The  second  period,  extending  to  1845,  was  one  °f 
moral  strife,  of  impassioned  and  bitter  discussion  of  the 


Strife  between  Groups  of  States         51 

ethical  bearings  of  the  question.  It  was  a  contention 
confined  to  no  part  of  the  country,  assuaged  by  no  re 
monstrance,  repressed  by  no  fear.  It  did  not  lie  between 
the  North  and  the  South,  directly  or  alone.  It  divided 
men  and  bodies  of  men  everywhere.  Neighborhoods  and 
churches  and  occupations  and  classes  were  involved  in  it. 
The  poison  which  broke  out  in  political  action  was  gen 
erated  in  the  entire  social  system.  The  moral  convictions 
of  the  country  were  made  up ;  the  forces  were  rallied  and 
accumulated  which  were  to  take  part  in  and  settle  the 
final  conflict.  Rarely  has  it  happened  in  the  history  of 
the  world  that  so  protracted  and  universal  a  moral  fer 
ment  has  preceded  action;  those  who  esteemed  it  per 
nicious,  and  those  who  thought  it  useless,  were  compelled 
to  contribute  to  it.  Those  who  regard  the  inner  purgings 
of  the  thoughts  as  events  of  the  most  moment  will  always 
return  with  interest  to  this  surging  backward  and  forward 
of  spiritual  life.  If  the  Civil  War  was  a  bitter  war,  fought 
through  to  an  end,  it  was  in  these  years  which  preceded 
it  that  the  requisite  energy  was  accumulated. 

The  last  period  was  one  in  which  the  nation  was  chiefly 
occupied  with  the  civil  and  political  changes  involved  in 
slavery.  The  old  equilibrium  was  passing  away,  a  new 
equilibrium  was  to  be  secured.  Every  one  was  occupied 
with  the  possibilities  of  the  case.  The  ellipse  was  break 
ing  up.  Around  which  centre  should  the  new  formation 
take  place  ?  The  question  could  no  longer  receive  an 
evasive  or  inadequate  answer.  Events  had  been  slowly 
ripening  from  the  formation  of  the  General  Government 
toward  this  result,  and  they  now  issued  in  the  Civil  War. 

§  5.  At  the  time  of  the  formation  of  the  Union,  slavery 
had  not  ceased  in  the  Northern  States.  The  flow  of 
events  and  of  public  opinion  was  adverse  to  slavery,  but 


52  The  Growth  of  Nationality 

had  not  yet  secured  its  complete  abolition.  In  1790, 
there  were  40,370  slaves  in  the  Northern  States,  some 
what  more  than  half  of  them  in  New  York.  Slavery  did 
not  wholly  cease  in  that  State  till  1827.  New  Jersey  had 
11,423  slaves.  There  were  657,527  slaves  in  the  Southern 
States.  The  northern  portion  of  these  States,  while  pos 
sessed  of  many  more  slaves  than  the  adjoining  States  of 
the  border  line,  were  not  active  in  the  defence  of  the  in 
stitution.  Virginia,  in  common  with  Delaware  and  Mary 
land,  had  forbidden  the  importation  of  slaves,  and  North 
Carolina  discouraged  it.  South  Carolina  and  Georgia 
were  alone  vigorous  in  the  defence  and  extension  of 
slavery.  It  was  the  ruling  term  in  their  social  polity. 

The  sentiments  called  out  by  the  Revolution,  and  which 
had  found  full  expression  in  the  Declaration  of  Independ 
ence,  were  expected  to  be  much  more  effective  than  they 
actually  were  in  the  removal  of  slavery.  The  enthusiasm 
of  liberty,  which  never  thoroughly  penetrated  the  average 
mind,  shortly  subsided,  and  left  the  less  conspicuous,  but 
more  enduring,  forces  involved  in  economic  interests  and 
social  life  in  possession  of  the  field. 

The  ordinance  of  1787  pertained  to  the  territory  already 
surrendered  by  the  States  to  the  Federal  Government,  a 
territory  to  be  still  further  enlarged  by  concession  and  by 
purchase.  It  applied  to  that  portion  of  territory  north 
west  of  the  Ohio  River,  extending  to  the  Mississippi  and 
the  Great  Lakes.  It  excluded  slavery  and  involuntary 
servitude.  It  was  the  first  act  of  division  between  the  two 
conflicting  interests  that  prevailed  in  the  nation.  This 
ordinance  was  the  starting-point  under  the  new  Constitu 
tion.  Territory  to  the  south  of  the  Ohio  was  organized 
without  restriction.  This  division  disclosed  a  contention 
which  lay  quite  beyond  the  compromises  of  the  Constitu- 


Strife  between  Groups  of  States         53 

tion,  and  was  of  more  moment  than  they.  The  nation 
must  grow;  was  bound  to  grow  rapidly.  This  growth 
must  constantly  renew  the  question  of  domestic  institu 
tions.  Slavery  and  liberty  must  encounter  each  other, 
and  jostle  each  other,  at  every  forward  step.  It  was  not 
the  concessions  already  made  but  the  concessions  to  be 
made ;  not  the  things  left  behind  it  but  the  things  before 
it,  that  perplexed  the  nation.  The  compromises  of  the 
Constitution  settled  nothing.  They  simply  kept  alive  a 
menacing  series  of  questions  that  lost  none  of  their  bitter 
ness  as  they  came  up  one  by  one.  The  national  strength 
was  in  daily  formation,  the  character  of  the  nation  in 
daily  declaration.  These  issues,  contained  in  the  points 
of  growth,  retained  their  vitality, and  their  power  to  irri 
tate  the  public  conscience. 

The  territory  northwest  of  the  Ohio,  easily  conceded 
to  liberty,  was  not  so  easily  retained.  The  territory  em 
bracing  Indiana  and  Illinois  asked  repeatedly  permission 
to  introduce  slavery.  William  H.  Harrison  favored  the 
movement.  The  territorial  legislature,  in  1806,  estab 
lished  a  system  of  indenture,  which  prevailed  for  a  long 
time  and  was  a  modified  form  of  slavery.  The  difficulty 
in  retaining  the  territory  conceded  to  liberty  arose  from 
the  character  of  the  immigration.  Southern  Indiana  and 
Illinois,  till  1809  parts  of  one  territory,  were  settled 
largely  from  the  South.  Its  occupants  came  with  a 
strong  predisposition  to  slavery.  While  one  climate  and 
one  form  of  production  may  be  much  more  consonant 
with  slavery  than  another  climate  and  other  types  of  la 
bor,  the  cherished  sentiments  of  a  people  may  still  be  the 
overruling  force.  Favoring  circumstances  were  building 
up  in  the  South  a  social  state  of  which  slavery  was  an  es 
sential  feature.  The  feelings,  convictions,  and  interests 


54  The  Growth  of  Nationality 

involved  in  this  form  of  society  took  on  great  propagat 
ing  power.  The  two  sets  of  influences,  social  and  physi 
cal,  constantly  reacted  on  each  other.  Slavery  was  not  a 
question  of  either  alone,  but  of  a  composite  force  due 
to  them  both. 

§  6.  This  energy  of  an  established  institution  was 
much  augmented,  in  the  case  of  slavery,  during  the  close 
of  the  last  century  and  the  opening  of  the  present  cen 
tury,  by  a  great  increase  in  cotton  goods.  Eli  Whitney, 
who  went  from  Massachusetts  to  Georgia  as  a  teacher, 
was  an  important  instrument  in  securing  this  result.  His 
invention  of  the  cotton-gin  enabled  a  single  man  to  do 
the  work,  approximately,  of  two  hundred  men.  In  1791, 
the  amount  of  cotton  exported  from  the  States  had  been 
189,500  pounds;  in  1803  it  had  risen  to  41,000,000 
pounds.  Expectations,  which  proved  extravagant,  it  is 
true,  but  which  were  in  themselves  plausible,  put  the 
South  in  the  foreground  of  production.  Charleston  was 
regarded  as  a  rival  of  northern  seaports.  It  was  slavery, 
chiefly,  which  disappointed  these  hopes.  The  increased 
production  of  cotton  extended  slavery,  and  raised  the 
price  of  slaves  in  adjoining  States.  The  slave-holding 
States  were  drawn  into  the  current  of  prosperity.  Slav 
ery,  a  marked  ground  of  distinction  between  the  North 
and  the  South,  carrying  with  it  many  differences  and  dis 
likes,  became  increasingly  an  occasion  of  union  on  the 
one  hand  and  of  separation  on  the  other.  Development 
carried  the  two  communities  ever  more  apart  in  all  the 
sentiments  and  forms  of  life. 

The  deliberations  of  Congress  showed  from  the  begin 
ning  the  divided  temper  which,  in  spite  of  commercial 
and  national  interests,  ripened  into  civil  war.  Patriotism 
was  no  sufficient  corrective  of  this  constant  chafing  of 


Strife  between  Groups  of  States          55 

social  sentiments.  In  the  first  session  of  the  first  Con 
gress,  a  tax  of  ten  dollars  was  proposed  on  each  imported 
slave.  In  the  second  session,  a  memorial,  addressed  to 
Congress  by  the  Quakers,  gave  rise  to  a  protracted  de 
bate.  In  neither  case  did  the  discussion  lead  to  any 
action.  At  this  time  the  only  State  finally  rid  of  slavery 
was  Massachusetts.  The  conflict  showed  from  the  be 
ginning  the  same  extreme  and  violent  opinion  which 
went  with  it  to  the  end.  The  nettlesome  feeling,  inci 
dent  to  a  practical  moral  question,  was  always  present. 
Protracted  attack  and  defence  influenced  it,  but  did  not 
beget  it.  The  defenders  of  slavery  took  high  ground, 
attacked  their  adversaries  as  meddlesome  fanatics,  re 
jected  all  interference  as  extraconstitutional,  expressed 
their  determination  to  defend  their  rights  to  the  utmost, 
and  in  every  way  assumed  an  uncompromising  attitude. 
The  chief  difference  between  earlier  and  later  debates  was 
that  the  strength  of  resistance  was  first  found  in  Georgia 
and  South  Carolina.  The  division  between  free  and  slave 
States  was  not  yet  firmly  drawn. 

The  same  personal  characteristics  were  manifest  as 
later;  here  offensive  insolence  in  the  defence  of  slavery, 
there  a  bold  word  for  liberty — as  the  speech,  in  the  second 
session,  of  Scott  of  Pennsylvania.  There  were  also  the 
same  sudden  and  weak  concessions  on  the  part  of  those 
whose  relations  pledged  them  to  firmer  action.  Ames  of 
Massachusetts,  who  had  succeeded  in  reducing  the  tax 
on  West  India  molasses  from  6  to  2J-  cents  per  gallon, 
and  who  had  ridiculed  the  moral  argument  in  its  applica 
tion  to  New  England  rum — then  and  since  finding  its 
chief  market  in  Africa— came  forward  to  help  arrest  any 
action  against  slavery.  It  was  fitting  that  two  forms  of 
traffic— the  one  in  rum  to  Africa,  the  other  in  slaves  from 


56  The  Growth  of  Nationality 

Africa — not  in  any  way  distinguishable  in  their  moral 
temper,  should  have  shown  so  early  an  affiliation.  It  is 
a  mistake  to  suppose  that  this  controversy  of  three  quar 
ters  of  a  century  was  due  to  abolitionists.  They  and  all 
were  products  of  deeper  causes.  North  and  South  alike 
were  finding  themselves  spiritually  under  the  stress  of  a 
great  social  issue,  and  suffering  its  discipline. 

§  7.  This  strife,  present  to  us  as  a  nation  at  any  mo 
ment,  early  and  late,  showed  how  impossible  it  was  to 
limit  the  question  of  slavery  by  the  formal  compromises 
of  the  Constitution.  Slavery  defines  a  social  type — a  type 
so  distinct  and  radical  as  to  embrace  national  character. 
The  question  was  constantly  recurring,  whether,  in  one 
particular  or  another,  it  should  have  way  in  the  United 
States.  Madison  urged  that  the  right  of  Congress  to  tax 
imported  slaves  was  a  means  placed  at  the  disposal  of  the 
General  Government  to  express  its  disapprobation  of  the 
traffic,  and  put  itself  right  before  the  world  ;  that  slavery, 
as  weakening  the  nation  within  itself,  was  a  national 
concern,  affecting  in  common  all  the  States. 

As  it  became  evident  that  two  incompatible  tendencies 
were  embraced  in  the  Union,  and  that  their  relations  to 
each  other  were  by  no  means  settled  by  the  Constitution, 
a  struggle  between  them  for  power,  a  desire  on  the  part 
of  each  to  shape  the  future  of  the  country  under  the 
Constitution  in  its  own  spirit,  were  inevitable.  While 
slavery,  as  a  contradiction  of  the  first  principles  of  liberty, 
was  on  the  defensive,  it  waged  from  the  beginning  an 
aggressive  warfare  in  behalf  of  its  own  interests.  Its 
situation  compelled  it  to  do  this.  The  drift  of  events 
was  against  it.  It  must  fight  for  a  footing.  The  active 
anti-slavery  sentiment  of  the  North  was  largely  the  recoil 
of  one  moral  temper  against  another.  While  there  were 


Strife  between  Groups  of  States         57 

many  busy  with  their  own  concerns  and  relatively  indif 
ferent,  those  who  had  in  any  degree,  North  or  South,  the 
prophetic  spirit,  felt  that  passing  events  were  pregnant 
with  consequences  which  must  be  shaped  now  or  never. 

§  8.  The  South  could  not  prevent  the  superior  rapidity 
of  growth  incident  to  the  unrestrained  activities  of  the 
free  States.  The  slave  States,  notwithstanding  the  unfair 
terms  of  representation  conceded  them,  were  increasingly 
outstripped  in  the  House  of  Representatives.  The  Sen 
ate,  however,  which  had  been  expressly  shaped  so  as  to 
maintain  a  balance  of  power  between  the  smaller  and  the 
larger  States,  was  used  as  the  shield  of  slavery.  On 
the  admission  of  Tennessee,  Kentucky,  and  Vermont  the 
States  were  equally  divided,  eight  and  eight,  between  the 
North  and  the  South.  States  were  then  admitted  by 
pairs  for  a  series  of  years;  Ohio  and  Louisiana,  Indiana 
and  Mississippi,  Illinois  and  Alabama,  Maine  and  Mis 
souri. 

This  method  of  admittance,  and  the  maintenance  of 
power  incident  to  it,  kept  the  question  of  territory,  in  its 
relation  to  slavery,  constantly  in  the  foreground.  Slav 
ery  must  ever  gain  more  as  a  condition  of  retaining  what 
it  had  gained.  Once  hemmed  in,  it  was  sure  of  being 
smothered. 

The  purchase  of  Louisiana  and  Florida  was  in  such 
manifest  furtherance  of  national  interests,  giving  us  the 
control  of  the  Mississippi  and  rectifying  our  boundary, 
that  it  met  with  little  opposition  and  hardly  raised  the 
question  of  slavery,  though  the  purchase  was  in  its  favor. 
The  question  of  territory  was  thus  disposed  of  for  a  series 
of  years  without  giving  occasion  to  any  conflict.  In  the 
meantime  the  affinities  of  the  several  States  revealed 
themselves  more  positively,  and  the  dividing  line  between 


58  The  Growth  of  Nationality 

them  became  a  widening  one  in  the  spirit  and  forms  of 
social  life.  It  was  impossible  that  a  contention  between 
tendencies,  so  much  in  modification  of  each  other,  should 
rest  for  a  moment. 

§  9.  The  earlier  part  of  the  present  century  was  a 
period  in  which,  throughout  the  civilized  world,  public 
opinion  was  being  shaped  against  slavery  and  the  slave 
trade.  The  United  States,  pledged  by  its  institutions  to 
freedom,  could  yet  present,  in  connection  with  this  great 
forward  movement,  only  a  half-hearted  and  fluctuating 
policy.  We  were  especially  put  to  disadvantage  in  our 
relations  with  England.  We  were  putting  forth  efforts 
and  making  claims  whi:h  involved  some  recognition,  on 
her  part,  of  property  in  slaves.  We  claimed  compensa 
tion  for  the  slaves  carried  off  in  the  War  of  1812.  We 
desired  the  return  of  slaves  set  free  by  entrance  into  Eng 
lish  ports.  Slaves,  in  the  coastwise  traffic,  were  espe 
cially  liable  to  be  driven  into  the  Bahama  Islands.  We 
fretted  under  the  escape  of  fugitives  to  Canada.  A 
slave-holding  community  cannot  be  at  entire  peace  with 
its  neighbors,  without  involving  them  in  some  conces 
sions.  The  injustice  shown  to  the  Indian  tribes  of  the 
South,  and  the  high-handed  measures  of  Jackson  in 
Florida,  were  associated  with  the  escape  of  slaves. 

In  1807,  when  Congress,  the  limitation  of  the  Constitu 
tion  being  about  to  expire,  forbade  the  slave  trade,  the 
half-hearted  temper  with  which  it  was  done  destroyed  its 
moral  force,  and  left  the  country  open  to  an  illicit  traffic. 
The  question  arose  as  to  what  disposition  should  be  made 
of  negroes  captured  by  the  United  States  in  the  repres 
sion  of  the  traffic.  The  first  proposition  was  that  they 
should  be  confiscated  and  sold  for  the  benefit  of  the 
United  States.  The  flagrant  inconsistency  of  this  pro- 


Strife  between  Groups  of  States          59 

position  slowly  made  itself  felt,  and  three  counter-propo 
sitions  were  offered :  that  they  should  be  bound  out  as 
apprentices  in  the  free  States,  that  they  should  be  re 
taken  to  Africa,  that  they  should  be  left  at  the  disposal 
of  the  slave  States  to  which  they  were  bound.  The  last 
proposition  prevailed.  This  meant  that  the  General 
Government,  having  captured  them,  handed  them  over 
to  slavery,  but  itself  refused  the  price.  It  did  not  so 
much  object  to  blood  as  to  the  price  of  blood  found  in  its 
own  hands.  In  the  acrimonious  debate  which  accom 
panied  the  prohibition,  a  chief  aim  of  the  South  was  to 
involve  the  United  States,  by  implication,  in  a  recogni 
tion  of  property  in  slaves;  and  of  the  North  to  escape,  in 
the  language  used,  this  inference.  As  in  the  Constitution 
itself,  words  were  more  gingerly  used  than  things.  The 
thing  was  done,  but,  in  concession  to  liberty,  it  was 
daintily  done. 

§  10.  The  period  from  1820  to  1845  was  distinguished 
from  that  which  preceded  it  by  a  more  well-defined  and 
open  conflict  of  moral  forces,  a  separation  throughout 
the  country  between  the  defenders  and  opponents  of 
slavery.  This  followed  naturally  from  the  firm,  bold  and 
aggressive  temper  which  slavery  disclosed.  It  was  plain 
that  the  mere  flow  of  events  was  not  sufficient  to  settle 
the  question;  that  it  was  one  inevitably  of  victory  or  de 
feat.  The  struggle  became  more  bitter,  and  lay  not  so 
much  between  the  North  and  South,  as  between  those, 
North  and  South,  concessive  to  slavery  and  those  unre 
lentingly  opposed  to  it.  This  period,  in  turn,  gave  rise 
to  the  one  that  followed,  in  which  the  strife  was  merged 
in  political  events. 

The  opening  of  Arkansas  to  slavery,  the  admission  of 
Missouri  as  a  slave  State,  and  the  Missouri  Compromise 


60  The  Growth  of  Nationality 

of  1820,  marked  a  new  departure  in  the  history  of  slavery. 
The  advance  lay  not  simply  in  the  fact  that  slavery  now 
passed  the  Mississippi,  well  to  the  north,  and  appropriated 
an  extended,  fertile,  and  strategic  territory;  that  this 
addition  no  longer  lay  in  a  quiet  completion  of  its  own 
boundaries,  but  was  an  unexpected  enlargement  of  those 
boundaries,  it  was  found  still  more  in  the  determined  and 
aggressive  temper  involved  in  the  act.  In  the  long  and 
heated  debate  which  issued  in  the  compromise,  much  was 
made  of  the  clause  of  the  Constitution  that  the  citizens 
of  each  State  shall  be  entitled  to  all  privileges  and  im 
munities  of  citizens  of  the  several  States.  The  South 
planted  itself  on  this  affirmation,  and  claimed,  as  a  right 
under  it,  free  access  to  all  the  territories  of  the  United 
States.  The  position  taken  by  the  South  was  just  only 
on  the  ground  that  slavery  was  a  normal  institution,  and 
entitled  to  the  same  consideration  and  rights  as  the  in 
stitutions  with  which  it  was  associated.  Slavery  must  be 
conceded  a  common-law  position,  its  claims  made  one 
with  the  recognized  mass  of  claims  contained  in  citizen 
ship.  This  was  as  if  a  cannibal  should  affirm  an  equal 
liberty  with  others  in  choosing  his  own  food.  The  claims 
of  the  South  could  not  be  met  on  any  other  than  wide 
social  and  moral  grounds,  and  yet  there  was  everywhere 
a  constant  denial  of  the  moral  character  of  the  discussion. 
It  was  pushed  back  into  civil  law,  where  there  was  no 
principle  plain  enough,  profound  enough,  authoritative 
enough  to  settle  it.  The  logic  of  the  debate,  so  ordered, 
inevitably  tended  to  the  conclusion,  finally  reached  by 
the  supporters  of  slavery,  that  black  men  had  no  rights, 
and  could  have  no  rights,  under  the  Constitution ;  that 
the  rights  which  had  been  conceded  them,  here  and 
there,  now  and  then,  were  transient,  illusory,  and  illogi- 


Strife  between  Groups  of  States         61 

cal ;  that  they  stood  in  contravention  of  the  extended 
rights  of  a  great  mass  of  citizens  guaranteed  them  by  the 
Constitution. 

§  II.  Under  this  clause  of  the  Constitution,  as  now 
interpreted,  not  only  had  slavery  the  same  safeguards  as 
liberty,  it  had  superior  ones.  Slavery  carried  with  it 
laws,  customs,  and  sentiments  which  inevitably  led  to  the 
exclusion  of  liberty.  The  two  could  not  thrive  side  by 
side,  and  the  rights  associated  with  slavery  shortly  shut 
of!  those  associated  with  liberty.  The  South,  in  denning 
its  rights  under  the  Constitution,  virtually  thrust  aside 
the  corresponding  rights  of  the  North  under  the  same  in 
strument.  The  only  reconciliation  was  that  attempted  in 
Kansas:  a  bloody  struggle  during  its  territorial  existence 
as  a  means  of  capturing  its  life  as  a  State. 

The  attack  of  the  South,  foreshadowed  in  this  debate, 
by  which  it  planted  itself  on  slavery  as  a  primitive  and 
indefeasible  right,  standing  side  by  side  with  the  other 
rights  of  a  citizen  under  the  Constitution,  and  incapable 
of  attack  or  reduction  on  moral  grounds,  naturally  drew 
forth  a  deeper  and  more  determined  protest.  It  was 
plain  that  the  compromise  of  36°  30'  was  only  a  second 
barrier  thrown  up  in  defence  of  liberty,  and  would  in 
turn  be  subject  to  attack. 

From  this  time  on,  new  courage,  new  tenacity,  and 
new  bitterness  were  shown  in  the  conflict.  It  came  to 
pervade  society  everywhere.  Men  like  Benjamin  Lundy 
and  William  Lloyd  Garrison  made  of  it  a  crusade.  A 
spirit  as  unflinching  and  aggressive  as  its  own  confronted 
slavery.  If  the  Constitution  did  open  the  way  for  the 
march  of  slavery  everywhere  under  the  aegis  of  the  Gen 
eral  Government,  then  it  was  what  Garrison  declared  it  to 
be,  "A  compact  with  death  and  an  agreement  with  hell." 


62  The  Growth  of  Nationality 

The  assertion  was  an  ethical  rendering  of  the  Southern 
interpretation  of  the  concession. 

At  no  time  subsequent  to  the  Revolution  had  the 
country  lacked  individual  and  organized  effort  against 
slavery.  The  fundamental  principles  of  liberty  had  been 
clearly  apprehended  and  cogently  stated.  Yet  there  had 
also  been  a  steady  growth,  North  as  well  as  South,  of 
industrial,  social,  and  political  interests  resting  on  slavery. 
These  gave  rise  to  sentiments  which,  if  they  did  not  look 
to  its  extension,  deprecated  any  immediate  opposition. 
A  large  portion  of  the  community,  with  strong  race  aver 
sions  and  religious  prejudices,  with  no  vigorous  sense  of 
right,  found  themselves  involved  in  the  flow  of  events, 
and  quietly  yielded  to  the  influences  which  made  for  the 
extension  of  slavery.  They  accepted  the  concession  of 
the  existing  state,  made  the  most  of  apologies,  assented 
to  the  obligation  of  constitutional  compacts,  were  restless 
under  any  higher  or  wider  standards  of  duty,  were  bitterly 
hostile  to  fanaticism,  and  regarded  present  prosperity  as 
all  that  the  practical  man  could  consider.  This  tend 
ency,  always  so  powerful  with  the  masses  of  men,  was 
especially  prevalent  after  the  Missouri  Compromise, 
which  accepted  slavery  as  a  permanent  political  fact  and 
provided  a  career  for  it,  side  by  side  with  liberty,  under 
the  national  flag. 

We  shall  not  understand  the  denunciatory  language  of 
Garrison  and  those  associated  with  him  unless  we  remem 
ber  that  sound  principles  were  becoming  dormant  in  the 
popular  mind,  that  a  general  sense  of  right  was  being 
smothered  by  an  overtopping  affirmation  of  constitu 
tional  obligations,  and  that  the  difficulty  of  the  situ 
ation  and  the  strong  undertone  of  events  were  being 
made  to  cover  up  moral  indifference.  It  was  a  case 


Strife  between 

in  which  the   prophetic  rule   became,   "  Cry  aloud   and 
spare  not." 

Garrison,  through  The  Liberator,—  started  in  Boston  in 
!83i — and  in  his  public  addresses,  made  moral  indolence 
impossible.  The  friends  of  liberty,  startled  by  his  un 
sparing  denunciations,  were  forced  to  accept  or  reject 
them.  Those  disposed  quietly  to  concede  the  claims  of 
slavery  were  thrown  into  an  attitude  of  bitter  hostility. 
The  battle  was  on,  and  the  sifting  process  began  with 
new  energy.  Rewards  were  offered  for  the  detection  of 
any  person  circulating  his  paper,  and  still  larger  rewards 
for  the  arrest  and  conviction  of  the  editor.  In  George 
town,  D.  C.,  one  circulating  the  journal  was  open  to  fine 
and  imprisonment,  and,  failing  to  pay  the  fine,  to  be  sold 
for  four  months  into  slavery.  The  apathy  which  accom 
panied  a  successful  development  of  evil  was  broken 
up.  "  Nine  years  after  the  establishment  of  The  Libera 
tor  there  were  nearly  two  thousand  anti-slavery  societies, 
with  a  membership  of  some  two  hundred  thousand." 
When  conscience  is  going  to  sleep  in  the  lap  of  indolence, 
it  is  not  to  be  awakened  by  commonplace  truths,  sung  as 
a  lullaby. 

§  12.  The  American  Anti-Slavery  Society  was  formed 
in  1833,  at  a  convention  held  in  Philadelphia.  Its  con 
stitution  was  one  of  uncompromising  hostility  to  slavery. 
Its  purpose  was  to  establish  anti-slavery  societies  and 
preach  an  evangel  of  liberty  "  in  every  city,  town,  and 
village  in  our  land."  The  men  who  took  part  in  it  were 
possessed  of  an  ability  and  energy  proportioned  to  the 
undertaking.  It  has  rarely  happened  that  a  discussion 
so  purely  ethical  has  been  carried  on  for  so  long  a  time 
over  so  extended  a  territory  with  so  little  interruption. 

1  Rise  and  Fall  of  the  Slave  Power  in  America,  vol.  i.,  p.  186. 


64  The  Growth  of  Nationality 

The  opposition  aroused  was  proportioned  to  the  char 
acter  and  vigor  of  the  attack.  Mobs  gathered  in  many 
cities.  Denunciation  and  violence  took  the  place  of 
argument.  The  words  of  our  Lord  were  once  more  illus 
trated,  "  I  came  not  to  bring  peace  but  a  sword."  Prin 
ciples,  as  an  immediate  guide  to  human  actions,  were 
accepted  and  rejected  on  all  sides.  The  religious  senti 
ment  of  the  country  was  no  more  true  to  itself  than  the 
political  sentiment.  Neither  of  them  had  fathomed 
their  faith  to  its  deepest  spirit,  and  neither  of  them  was 
prepared  for  a  self-denying  application  of  its  precepts. 
Hence  the  ethical  conflict  disturbed  and  divided  the 
churches  with  the  same  vigor  with  which  it  stirred  up  the 
community.  It  was  truly  a  great  period  in  the  history  of 
the  nation  as  forcing  men  back  upon  fundamental  con 
victions,  and  making  them  thoroughly  aware  of  the  law 
of  righteousness  in  its  exacting  character.  If  this  strife 
seemed  to  sow,  and  did  sow,  national  division,  it  helped  to 
hold  in  check  a  movement  which  would  have  ultimately  di 
vided  the  nation.  It  precipitated  the  conflict  for  liberty, 
and  rallied  the  forces  which  carried  it  successfully  through. 

The  personal  power  drawn  out  by  the  struggle  was  of 
the  very  best.  There  were  many  to  lead  and  many  to  be 
led.  Every  community  had  its  prophet  and  became 
fruitful  of  heroic  purpose.  Men  of  the  highest,  finest, 
most  unselfish  impulses  stirred  the  people,  when  little 
open  action  was  possible  and  the  political  outlook  was 
obscure,  to  deliberation,  petition,  censure.  The  spirit 
of  martyrdom  was  present  in  the  stern  soul  of  Garrison, 
and  in  the  more  gentle  mind  of  Lovejoy.  It  took  pos 
session  of  large  numbers  who  were  willing  to  proclaim 
liberty  and  assist  the  fugitive  slave  at  all  personal  hazard. 
John  Brown  was  the  apotheosis  of  this  temper,  in  its 


Strife  between  Groups  of  States         65 

least  rational,  but  in  its  most  unhesitating,  form — a  mar 
vellous  example  of  the  productive  power  of  a  noble  mind 
even  when  it  has  shaken  off  contemptuously  the  conven 
tional  opinions  which  should  clothe  us  as  a  garment. 

The  best  oratorical,  and  the  best  poetical,  ability  were 
enlisted  in  the  cause.  Whittier  brought  to  the  defence 
of  freedom  a  spirit  at  once  stern  and  tender.  Lowell 
scourged  the  defenders  of  slavery  with  sarcasm  and  ridi 
cule.  Phillips  stirred  even  a  reluctant  public  with 
speeches  skilful,  winning,  and  bold.  Parker  aroused  the 
moral  sense  by  appeals  direct  and  incontrovertible.  Yet 
these  men  were  simply  leaders  among  men  in  no  way 
inferior  to  them  in  temper,  and  not  far  behind  them  in 
power. 

In  due  time  the  movement  begot  statesmen  of  the  same 
large  mould :  Adams,  Giddings,  Sumner,  Seward.  Not 
often  in  the  history  of  any  nation  have  the  ethical  con 
victions  of  the  people  been  brought  so  persistently  to  the 
solution  of  a  great  problem.  So  profound  an  effort 
greatly  stimulated  the  national  mind.  The  discussion 
lost  its  local  bearings.  A  horizontal  cleavage  came  in  to 
modify  the  vertical  cleavage  that  divided  the  North  and 
the  South.  A  fresh  sense  of  liberty  was  called  out,  and 
citizens  proclaimed  it  throughout  the  land.  A  spirit  of 
self-devotion  was  awakened  in  behalf  of  the  public  wel 
fare,  conceived  in  a  reformatory  and  ideal  way.  When 
the  final  struggle  actually  came,  we  were  able,  by  virtue 
of  this  preliminary  discipline,  to  escape  two  dangers — the 
danger  of  clinging  to  a  policy  of  concession  and  com 
promise,  and  the  danger  of  discouragement  as  the  conflict 
became  fierce. 

§  13.  Lincoln,  to  whom  the  country  owed  so  much  in 
the  issue,  was  in  a  very  complete  way  the  product  of  the 


66  The  Growth  of  Nationality 

discussion  in  which  so  many  complex  social  tendencies 
were  brought  face  to  face.  His  courage  was  characterized 
by  hesitancy.  He  was  afraid  of  adopting  a  policy  which 
had  not  come  to  express  the  heart  of  the  nation.  He 
was  a  popular  leader  in  the  sense  that  he  kept  close  to 
the  people  and  wished  to  feel  them  each  instant  behind 
him.  He  was  not  impatient  of  delay.  He  was  not 
making  for  a  distant  port,  but  evading  danger  just  under 
his  keel.  The  anti-slavery  sentiment  that  was  generated 
before  the  war  was  all  needed  to  sustain  the  war.  It  be 
came  the  centre  of  that  conviction  which  left  us  no  choice 
but  victory.  Our  nationality  was  never  so  strong  as 
when  we  finished  the  struggle. 

The  dissension  and  bitterness  which  were  inseparable 
from  the  anti-slavery  crusade  were  relatively  superficial, 
and  passed  quickly  away  when  overmastering  events  took 
the  question  in  hand  and  gave  it  their  own  irrevocable 
answer.  No  form  of  defeat  leaves  slighter  wounds 
than  one  which  attends  the  victory  of  a  moral  principle. 
The  "  lost  cause  "  was  absolutely  lost,  and  admitted  of 
no  resurrection.  The  overthrow  was  not  a  personal 
wrong,  it  was  not  a  personal  triumph ;  it  was  the  accept 
ance  of  a  conclusion  which  the  ethical  sense  of  the  world 
had  placed  beyond  further  debate.  We  have  occasion 
to  look  back  on  those  years  in  which  the  nation  was  so 
deeply  and  widely  moved  within  itself  by  social  ideas  as 
a  period  in  which  we  came  into  better  possession  of  our 
doctrine  of  liberty,  and  were  made  ready  to  give  it  a 
more  vigorous  and  invigorating  development.  The  soil 
was  plowed  and  harrowed,  but  in  reference  to  more  lusty 
growth.  We  found  the  honey  in  the  carcass  of  the  lion. 

§  14.  The  political  events  which  went  with  this  period 
of  discussion  were  not  of  the  same  moment  as  those  to 


Strife  between  Groups  of  States         67 

which  it  gave  rise,  but  they  helped  to  keep  the  public  in 
ferment,  and  to  disclose  the  exacting  character  of  slavery 
as  a  social  institution.  We  as  a  nation  could  not  shape  a 
foreign  policy  in  harmony  with  a  free  government.  We 
could  not  be  hearty  in  the  suppression  of  the  slave  trade. 
We  were  on  bad  terms  with  Spain  and  with  England  be 
cause  of  escaped  slaves.  We  were  forced  to  take  a  regres 
sive  attitude  whenever  the  question  of  slavery  came  into 
the  foreground. 

The  Creole,  in  1841,  sailing  from  Hampton,  Virginia, 
to  New  Orleans  with  one  hundred  and  thirty-six  slaves, 
was  captured  by  them  and  carried  into  Nassau.  They 
thus  became  free  under  English  law.  This  gave  rise  to 
warm  debate  in  the  Senate,  and  to  expostulation  on  the 
part  of  Daniel  Webster,  Secretary  of  State.  Joshua  Gid- 
dings  introduced  resolutions  into  the  House,  setting  forth 
the  local  character  of  slavery.  He  was  censured  by  the 
House,  resigned,  and  was  returned  by  his  constituents. 

Just  previously,  in  1839,  nac^  occurred  the  "  Amistad 
case."  Certain  negroes  had  been  bought  in  Cuba  of  a 
Portuguese  slaver,  in  violation  of  the  law  of  Spain.  They 
were  being  transferred  from  one  port  in  Cuba  to  another  on 
board  the  Amistad.  They  rose  against  the  crew,  captured 
the  vessel,  and  ordered  that  it  should  sail  to  Africa.  In 
place  of  this,  it  was  furtively  brought  northward,  and  was 
taken  by  a  brig  in  the  service  of  the  United  States  into  New 
London.  The  Spanish  ambassador  demanded  the  return 
of  the  alleged  slaves.  The  Secretary  of  State  under  Mr. 
Van  Buren  was  ready  to  grant  the  claim,  and  made  pre 
paration  to  return  the  negroes  at  the  public  charge.  An 
anti-slavery  committee  was  formed  to  protect  them  in 
their  rights.  A  suit  was  brought  in  the  District  Court. 
The  decision  was  in  favor  of  liberty.  The  case  was 


68  The  Growth  of  Nationality 

carried  up  to  the  Circuit  Court,  and  later  to  the  Supreme 
Court.  The  judgment  of  the  lower  court  was  affirmed. 
John  Quincy  Adams  made  an  aggressive  and  telling  argu 
ment  before  the  Supreme  Court.  The  concessive  temper 
of  the  Executive  was  thwarted  only  by  the  persistency  of 
the  anti-slavery  sentiment. 

§  1 5.  The  nature  of  the  contention  became  yearly  more 
evident.  No  peaceful  and  final  compromise  was  possible 
between  liberty  and  slavery.  Slavery  was  too  difficult  of 
maintenance,  too  much  opposed  to  the  general  flow  of 
thought  and  of  events,  to  allow  any  other  attitude  in  its 
adherents  than  that  of  determined  resistance.  So  obvious 
a  fact  would  have  disclosed  itself  at  an  earlier  period  had 
not  a  strong  race  prejudice  added  itself  to  weighty  inter 
ests.  The  guaranties  of  the  Constitution  were  found  in 
the  way  of  slavery.  The  right  to  petition  the  Govern 
ment  for  the  redress  of  grievances  was  among  these  em 
phasized  safeguards.  It  was  employed  at  once  against 
slavery.  Its  continued,  though  ineffectual,  use  became 
very  annoying  to  the  South.  During  Mr.  Adams's  long 
service  in  the  House,  he  was  the  favorite  avenue  of  in 
troducing  anti-slavery  petitions.  In  1835,  a  petition  was 
introduced  by  Mr.  Adams  purporting  to  corne  from 
slaves.  His  action  provoked  savage  attack,  and  was 
defended  with  his  usual  insight  and  intrepidity.  The 
debate  issued  in  the  passage  of  the  following  resolution : 
'  That  all  petitions,  memorials,  and  papers  touching  the 
abolition  of  slavery  or  the  buying  or  selling  or  transfer 
ring  slaves  in  any  State  or  District  or  Territory  of  the 
United  States,  be  laid  on  the  table  without  being  debated, 
printed,  read,  or  referred,  and  that  no  action  be  taken 
thereon." 

In  1842,  Mr.  Adams  presented  a  petition  from  citizens 


Strife  between  Groups  of  States         69 

of  Haverhill,  praying  for  a  peaceful  dissolution  of  the 
Union.  A  resolution  of  censure  was  moved.  This  gave 
occasion  to  one  of  the  most  powerful  and  incisive  of  Mr. 
Adams's  speeches.  He  so  well  understood  the  principles 
of  the  Government,  and  was  so  utterly  fearless  in  their 
defence,  that  no  attack  upon  him  prevailed.  Rarely  has 
a  cause  been  favored  with  so  able  and  so  courageous  a 
defender  as  John  Quincy  Adams  in  the  House  of  Repre 
sentatives.  For  a  long  period  he  met  and  repelled  the 
hostility  of  pro-slavery  sentiment.  Our  party  politics  no 
longer  admit  of  such  personal  independence. 

Two  other  guaranties  of  the  Constitution  were  freedom 
of  speech  and  freedom  of  the  press.  The  attitude  in  Con 
gress,  the  censure  bestowed  on  its  members  for  freedom 
of  speech,  mob  violence  in  the  North,  repressive  statutes 
in  the  South,  set  at  naught  this  birthright  of  liberty. 
The  freedom  of  the  press  suffered  direct  attack  from 
which  it  narrowly  escaped.  Jackson,  in  his  Message  to 
Congress,  in  1835,  drew  attention  to  the  danger  arising 
from  "  inflammatory  "  matter  circulated  through  the 
mails.  A  bill  was  reported  in  accordance  with  the  mes 
sage,  prohibiting,  under  severe  penalties,  the  dissemina 
tion  in  the  several  States  of  publications  which  they 
should  pronounce  incendiary.  It  failed  in  the  Senate  by 
the  casting  vote  of  the  President. 

During  the  years  which  separated  the  passage  of  the 
Missouri  Compromise  from  the  annexation  of  Texas,  both 
the  moral  and  the  political  character  of  slavery  were  more 
and  more  disclosed  as  inconsistent  with  free  institutions, 
both  with  the  principles  on  which  they  rest  and  with 
their  administration.  No  compromise  was  of  avail,  be 
cause  new  points  of  collision  were  constantly  arising;  the 
controversy  extended  to  the  entire  temper  of  the  social  life. 


70  The  Growth  of  Nationality 

§  16.  The  unexpected  and  the  unbearable  ways  in 
which  these  collisions  arose  is  well  illustrated  in  the  case 
of  colored  seamen.  The  Constitution  provides  that  the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States.  Some 
of  the  Southern  States,  more  especially  South  Carolina 
and  Louisiana,  were  unwilling  that  any  free  black  should 
enter  their  borders.  Colored  seamen  arriving  in  Northern 
vessels  were  imprisoned  in  Charleston  and  in  New  Orleans 
during  the  stay  of  the  vessel,  and  released  when  it  sailed 
on  condition  that  the  jail  fees  were  paid.  If  they  were 
not  paid,  the  negro  could  be  sold  into  slavery  in  discharge 
of  them.  The  efforts  of  Lincoln  to  redeem  a  negro,  so 
sold  in  New  Orleans,  were  one  of  his  earlier  experiences 
with  slavery.  Massachusetts  endeavored,  in  1844,  to 
bring  the  law  in  South  Carolina  to  the  test  of  the  Consti 
tution.  Samuel  Hoar  was  sent  to  Charleston  in  order  to 
arrive  more  accurately  at  the  facts,  to  bring  them  before 
the  government  of  the  State,  and,  if  need  be,  to  secure 
the  intervention  of  the  Supreme  Court  of  the  United 
States  in  the  defence  of  its  citizens.  His  arrival  occa 
sioned  instant  commotion.  The  legislature  adopted  a 
series  of  resolutions  asserting  the  right  of  the  State  to 
exclude  from  her  territory  colored  persons,  denying  that 
they  were  citizens  of  the  United  States, — a  doctrine 
which  later  found  full  expression  in  the  Dred  Scott  de 
cision — and  requesting  the  governor  to  expel  the  emissary 
sent  by  Massachusetts  to  South  Carolina.  The  legisla 
ture  also  passed  an  act  to  punish  any  one  coming  into 
the  State  to  disturb,  in  their  operation,  the  laws  of  the 
State  pertaining  to  free  persons  of  color. 

Mr.  Hoar  was  urged  and  threatened  till  it  became  evi 
dent  that  his  choice  lay  simply  between  passive  and  active 


Strife  between  Groups  of  States         71 

expulsion.  He  chose  the  former,  and  was  conducted  to 
the  vessel  of  embarkation.  Treatment  that  would  have 
been  an  occasion  of  war  between  independent  nations 
was  suffered  without  redress  between  States  under  one 
government.  In  1845,  Florida  was  admitted  to  the 
Union  with  an  article  in  her  constitution  excluding  free 
negroes  from  her  soil. 

§  17.  The  third  period  was  ushered  in  by  an  event  of 
supreme  moment  in  the  political  history  of  the  anti- 
slavery  struggle— the  annexation  of  Texas,  at  the  close 
of  1845.  It  was  a  signal  triumph  of  the  South,  but  gave 
rise  to  a  series  of  events  which  brought  the  conflict  to  a 
conclusion.  It  was  a  victory  pregnant  with  defeat.  An 
nexation  was  of  much  immediate,  as  well  as  ultimate, 
moment.  It  involved  us  in  an  unjust  war  with  Mexico; 
it  added  extensive  territory  and  thereby  gave  fresh  occa 
sion  for  contention;  it  increased  the  arrogance  of  un 
righteousness  by  immediate  success. 

The  annexation  of  Texas  was  met  with  more  general 
and  determined  opposition  than  any  previous  measure  in 
the  interest  of  slavery.  It  looked  distinctly  to  the  ex 
tension  and  perpetuity  of  the  malign  institution ;  it  was 
in  no  way  involved  in  the  compromise  of  the  Constitu 
tion  ;  it  could  not  plead  any  appearance  of  fairness  in  the 
division  of  territory  belonging  to  the  nation  ;  it  was  simply 
unscrupulous  power  forcing  its  way  to  its  own  purpose. 
Boston  and  Faneuil  Hall  found  their  voice  once  more  in 
behalf  of  liberty.  The  Legislature  in  Massachusetts,  by 
resolution,  refused  to  acknowledge  the  annexation  as 
binding. 

John  P.  Hale,  a  member  of  the  House  of  Representa 
tives  from  New  Hampshire,  who  had  declared  against 
annexation,  was  dropped  by  the  Democrats.  He  can- 


72  The  Growth  of  Nationality 

vassed  the  State.  No  election  was  secured.  Later  the 
Whigs  and  Independent  Democrats  carried  their  ticket. 
Hale  was  sent  first  to  the  Legislature  of  the  State  and  then 
to  the  Senate  of  the  United  States.  The  anti-slavery 
discussion  began  to  bear  political  fruits.  Many  who  had 
neglected  it,  or  who  had  been  opposed  to  it,  as  a  contro 
versy,  were  ready  to  alter  their  attitude  when  a  question 
involving  the  extension  of  slavery  was  broached. 

In  the  presidential  campaign  of  1840,  the  Liberty 
party  was  formed.  It  rested  simply  on  anti-slavery 
principles,  and  its  numbers  were  small.  As  the  contro 
versy  widened  and  assumed  a  more  definite  political 
character,  it  was  replaced  by  the  Free-Soil  party  of  1848. 
This,  in  turn,  gave  way,  in  1856,  to  the  Republican 
party.  Each  subsequent  movement  softened  and  corre 
spondingly  extended  the  anti-slavery  sentiment.  It  was 
this  that  was  held  in  solution  by  them  all.  The  opposi 
tion  to  annexation, though  more  general  than  any  previous 
resistance,  failed  of  its  immediate  purpose.  The  mass  of 
the  people,  occupied  with  their  own  affairs,  and  kept  con 
tented  by  the  general  prosperity,  were  not  ready  to  break 
with  existing  parties  and  methods.  Political  traditions 
are  not  cast  aside  by  the  majority  of  voters  on  less  than 
revolutionary  grounds.  The  Democratic  party  was  in 
stolid  acceptance  of  the  existing  state,  and  the  Whigs 
were  divided  and  uncertain. 

The  Mexican  War,  notwithstanding  that  it  was  forced 
upon  Mexico  and  was  waged  between  very  unequal  par 
ties,  soon  enlisted  the  nation,  kindled  enthusiasm  in  a 
bad  cause,  and  misled  the  public  conscience.  The  Jingo 
element,  among  people  and  politicians,  is  so  quickly 
aroused  in  a  fight  as  to  render  the  nation  unable  to  see 
whether  the  warfare  can  subserve  any  good  purpose  or 


Strife  between  Groups  of  States         73 

yield  any  honor.  The  successes  of  the  war  diverted  at 
tention  from  its  ulterior  purposes,  and  from  the  national 
disgrace  associated  with  it. 

§  18.  The  whole  question  between  the  North  and 
South  was  raised,  in  an  acute  form,  in  the  terms  of  peace 
and  in  the  division  of  territory.  The  President,  in  1846, 
asked  an  appropriation  of  two  millions  in  order  to  secure 
a  favorable  settlement  of  boundaries  in  making  peace 
with  Mexico.  Mr.  Wilmot,  of  Pennsylvania,  proposed 
as  an  amendment  to  the  bill  that  slavery  should  be  ex 
cluded  from  any  territory  ceded  by  Mexico.  The  amend 
ment  prevailed  in  the  House,  but  a  vote  was  not  reached 
in  the  Senate.  The  opposition  to  the  extension  of  slavery 
seemed  more  determined  in  connection  with  the  Wilmot 
Proviso  than  on  any  former  occasion.  It  lacked,  how 
ever,  real  strength.  Neither  of  the  political  parties  was 
organized  on  the  anti-slavery  sentiment,  and  in  neither  of 
them  did  it  command  unflinching  support. 

At  the  next  session  of  Congress,  three  millions  were 
asked  for.  A  similar  amendment  was  proposed,  and 
failed.  The  unity  and  energy  of  aggressive  action  were 
with  the  South,  while  the  North,  with  a  feeble  and  fluctu 
ating  hold  on  principles  and  with  divided  interests, 
offered  no  effective  resistance.  On  the  one  side  were  a 
perfectly  distinct  purpose  and  a  solid  constituency;  on 
the  other,  a  reluctance  of  many  kinds  and  shades  and  a 
divided  constituency. 

On  February  2,  1848,  a  treaty  of  peace  was  made  with 
Mexico.  She  ceded  by  this  treaty,  and  by  the  Gadsden 
purchase  made  a  few  years  later,  territory  nearly  equal  in 
size  to  the  original  thirteen  States.  The  ultimate  disposi 
tion  of  this  territory  in  reference  to  slavery  became  at 
once  the  absorbing  question.  Texas,  already  sanction- 


74  The  Growth  of  Nationality 

ing  slavery,  fell  into  the  rank  of  slave  States  without 
discussion.  The  territory  derived  directly  from  Mexico 
had  been  made  free,  and  Mexico  had  endeavored  to 
secure  in  the  treaty  of  peace  a  provision  that  it  should 
remain  free.  Her  efforts  were  impotent;  but  by  the 
forced  concession  of  so  large  a  tract  she  threw  into  the 
camp  of  the  enemy  an  apple  of  discord  that  broke  it  up. 
What  she  could  not  do  by  war,  she  did  in  a  much  more 
perfect  manner  by  peace. 

§  19.  In  December,  1848,  Mr.  Root  of  Ohio,  introduced 
into  the  House  a  resolution  instructing  the  Committee  on 
Territories  to  frame  bills  providing  territorial  governments 
for  New  Mexico  and  California,  excluding  slavery.  The 
resolution  was  carried,  all  Democrats  from  the  North  but 
eight  voting  for  it.  The  bill  for  the  organization  of  Cali 
fornia  passed  the  House,  but  failed  in  the  Senate,  the 
fortified  citadel  of  the  slave  power.  The  Senate  strove 
to  organize  the  territory  acquired  from  Mexico  without 
restrictions.  The  chief  struggle  occurred  in  connection 
with  the  organization  of  Oregon,  in  1848.  As  Oregon 
was  not  a  part  of  the  fruits  of  the  war,  and  was  quite 
certain  to  be  a  free  territory,  the  discussion  was  simply 
seizing  upon  an  early  occasion  to  open  the  conflict  and 
to  prepare  the  way  for  what  was  to  follow. 

The  doctrine  of  equal  rights  between  the  North  and 
the  South,  which  appeared  in  the  debate  on  the  Missouri 
Compromise,  was  now  carried  one  step  farther.  Calhoun 
insisted  that  Congress  had  no  right  to  exclude  slavery 
from  the  territories  acquired  by  the  United  States.  Every 
citizen  of  the  United  States  had  an  indefeasible  right  to 
enter  these  territories,  and  to  carry  his  property  with 
him.  On  no  other  terms  could  an  equality  of  rights  be 
tween  the  States  be  maintained.  This  conclusion  was 


Strife  between  Groups  of  States         75 

contained  in  the  premises  that  slavery  was  recognized  in 
the  Constitution,  that  no  limitations  were  put  upon  it, 
and  that  the  equality  of  the  States  was  the  fundamental 
idea  of  the  Federal  Government.  This  argument  was 
not  fully  met  by  the  assertion  that  property  in  slaves 
was  not  a  universally  recognized  right,  that  it  owed  its 
existence  to  local  Uw,  and  had  no  existence  beyond  that 
law.  The  most  general  law  in  the  United  States,  the  Con 
stitution,  had  tacitly  accepted  slavery  without  limitation, 
and  could  not,  through  Congress,  withdraw  that  conces 
sion.  When  the  silence  and  the  coy  phrasing  of  the  Con 
stitution,  which  were  intended  to  maintain  a  good 
conscience  and  still  keep  the  peace,  were  made  to  involve 
all  that  would  have  been  contained  in  the  explicit  accept 
ance  of  slave  and  free  States  on  the  same  footing,  the  dread 
ful  and  impossible  character  of  the  compact  began  to  be 
felt.  Here  was  another  illustration  of  the  principle  that  in 
social  questions  the  failure  to  reject  a  wrong  is  its  accept 
ance,  that  that  which  is  not  rooted  up  is  left  to  grow. 
An  open  field  is  all  that  a  social  evil  demands;  its  propa 
gating  power  is  in  itself.  Mr.  Calhoun  insisted,  as  he 
insists  who  holds  a  license  for  the  sale  of  intoxicating 
drinks,  that  the  Constitution  gave  its  sanction  to  property 
in  slaves,  and  cured  any  doubt  which  might  seem  to  at 
tach  to  it.  The  speeches  made  in  connection  with  the 
territorial  government  of  Oregon  rendered  plainer  what 
was  already  plain, — that  the  scruples  of  the  North  had  no 
civic  footing,  that  the  controversy  between  slavery  and 
liberty  admitted  of  no  settlement  till  the  issue  was  trans 
ferred  to  the  court  of  ethical  and  social  welfare.  Moral 
considerations  underlay  all  that  the  friends  of  freedom 
had  to  say  effectually  in  its  behalf;  the  neglect  and  the 
denial  of  these  considerations  left  the  pro-slavery  argu- 


76  The  Growth  of  Nationality 

ment  coherent  and  unanswerable.  The  temper  and  the 
letter  of  the  Constitution  were  at  war  with  each  other. 
The  letter  conceded  slavery,  the  sentiment  which  accom 
panied  its  formation  looked  to  its  silent  extinction.  The 
bond  was  with  Shylock. 

The  impossibility  of  successfully  compromising  a  moral 
question  lies  in  the  fact  that  ethical  law  is  a  vital  tissue, 
interlacing  all  social  facts.  Whenever  we  touch  it  affirm 
atively  or  negatively  we  call  out  some  immediate  or  re 
mote  consequences  which  raise  afresh  the  principles  we 
have  set  aside.  There  is  no  possible  circumscription  of 
a  moral  principle.  It  reappears  wherever  we  go  in  some 
fresh  corollary.  If  we  fall  into  error,  we  must  go  back 
to  the  beginning  and  correct  our  mistake,  otherwise  we 
carry  an  accumulating  difficulty  with  us. 

The  establishment  of  a  government  in  Oregon  was  a 
skirmish  which  served  simply  to  open  the  real  conflict. 
This  came  in  disposing  of  the  territory  just  won  from 
Mexico.  An  event  intervened  which  greatly  aided  the 
North.  The  stars  in  their  courses  took  sides.  The  dis 
covery  of  gold  in  California  was  the  occasion  of  an  instant 
and  large  emigration  of  a  class  predisposed,  in  an  abnor 
mal  degree,  to  personal  liberty.  This  settled  the  fate  of 
California. 

§  20.  It  was  not  till  1850  that  the  final  compromise 
was  reached.  Another  question  besides  the  division  of 
territory  was  included  in  it,  a  new  and  more  vigorous 
fugitive  slave  law.  No  one  thing  served  more  to  carry 
the  slavery  controversy  into  all  parts  of  the  country,  and 
to  keep  it  at  a  white  heat,  than  the  escape  and  the  return 
of  slaves.  When  it  came  to  an  actual  case  of  a  slave 
heroically  struggling  for  liberty,  comparatively  few 
Northern  men  were  willing  to  aid  in  the  capture,  and 


Strife  between  Groups  of  States         77 

many  found  the  appeal  for  assistance  irresistible.  During 
the  years  which  immediately  preceded  the  compromise 
of  1850,  the  number  of  slaves  escaping  to  Canada  had 
greatly  increased,  and  organized  efforts  were  made  to  aid 
them.  This  was  a  contention,  not  for  abstract  principles 
or  political  rights,  but  for  human  beings  in  the  active 
pursuit  of  liberty,  and  it  called  out  a  corresponding  de 
votion.  This  part  of  the  yoke  which  the  North,  in 
uniting  with  the  South,  had  agreed  to  carry,  was  always 
chafing  and  now  became  intolerable.  The  South,  in 
consistency  with  an  aggressive  attitude  which  after  all  re 
solved  itself  into  self-defence,  was  disposed  to  insist  on 
a  more  vigorous  enforcement  of  the  law.  Yet  it  was  an 
effort  fitted  to  inflame  opposition  and  defeat  itself. 

The  contest  by  which  the  newly  acquired  territory  was 
to  be  settled  in  its  destination  became  intense.  Those 
elected  on  a  Free-Soil  ticket  began  to  appear  in  both 
branches  of  Congress,  and  to  give  fearless  expression  to 
the  doctrines  of  liberty.  It  had  become  less  easy  for 
Northern  representatives  either  to  evade  the  conflict  or 
to  juggle  with  its  underlying  principles.  On  the  other 
hand,  the  South  had  annexed  Texas,  waged  the  Mexican 
War  and  secured  its  fruits  in  large  acquisitions  of  terri 
tory.  It  was  made  bold  by  success,  and  found  no  room 
for  repentance  or  hesitancy.  As  the  North  became  resist- 
ful  the  South  became  violent.  Its  claims  were  rested 
upon  the  ground  of  fulfilment  of  promises  and  equality 
of  rights  under  the  Constitution.  The  North  was  con 
stantly  put  to  disadvantage  by  the  fact  that  its  position 
depended  for  justification  on  profound  moral  principles, 
which  it  was  assumed  would  ultimately  prevail,  but  which 
had  been  sacrificed  in  the  Constitution,  and  constantly 
ruled  out  of  order  in  discussion.  The  presumptions  went 


78  The  Growth  of  Nationality 

for  nothing,  while  the  specific  concessions  of  the  Consti 
tution  and  their  immediate  implications  were  always  at 
hand.  Setting  aside  ethical  right,  and  resting  alone  on 
guaranteed  civil  rights,  the  South  was  strong.  A  footing 
had  been  distinctly  given  to  it,  and  no  restrictions  had 
been  laid  on  the  future.  Equality  of  opportunity  be 
tween  the  States  was  the  postulate  of  the  Constitution. 
The  conflict  involved  the  safety  of  the  Union  because  it 
involved  its  destination,  and  the  people  were  not  agreed 
as  to  that  ultimate  form  of  the  national  life. 

§  21.  Henry  Clay  brought  forward  the  compromise 
measures  of  1850.  Though  he  was  not  able  to  secure 
their  passage  as  one  complete  scheme,  they  were  adopted 
singly  with  some  modifications,  and  became,  for  a  brief 
period,  not  the  ground  of  reconciliation,  but  of  a  partially 
suspended  strife.  Texas  was  reserved  for  the  formation 
of  slave  States,  and  the  boundary  between  it  and  New 
Mexico  was  settled  by  a  payment  to  Texas.  California 
was  admitted  as  a  free  State,  New  Mexico  and  Utah  were 
established  as  territories  with  no  restriction  on  slavery. 
A  more  vigorous  fugitive  slave  law  was  passed.  The 
slave-trade  in  the  District  of  Columbia  was  prohibited. 

The  concessions  to  the  North  in  this  compromise  were 
slight,  and  those  to  the  South  were  such  as  to  renew  and 
extend  the  conflict.  The  new  fugitive  slave  law  provided 
that  slaves  were  to  be  surrendered  on  claim  without  judi 
cial  procedure  other  than  that  provided  in  the  law.  The 
claims  were  to  be  heard  before  a  commissioner  appointed 
for  that  purpose.  A  fee  of  $10  was  allowed  if  the  alleged 
slave  was  surrendered,  and  of  $5  if  he  was  dismissed. 
Persons  making  arrests  of  slaves  were  authorized  to  sum 
mon  the  aid  of  bystanders.  The  law  cast  no  protection 
about  the  colored  population  of  the  North,  and  looked 


Strife  between  Groups  of  States         79 

simply  to  the  ease  of  the  master  in  recovering  his  prop 
erty.  The  new  law  was  accompanied  with  new  activity 
in  its  enforcement ;  and  with  new  resistance.  Cases  were 
constantly  occurring  which  stirred  the  popular  mind  pro 
foundly.  Those  who  accepted  the  compromise,  and  were 
anxious  to  see  the  reconciliation  it  proposed  secured, 
were  pledged  to  the  law,  and  strove,  though  in  vain,  to 
quiet  the  public  mind.  No  trimmers  had  ever  a  more 
distasteful  and  impossible  task  assigned  them.  States 
refused  the  use  of  their  jails  to  officers  in  execution  of 
the  law,  and  the  Supreme  Court  of  Wisconsin  opened  a 
conflict  of  authority  by  pronouncing  it  unconstitutional. 
A  more  complete  exposure  of  the  nature  of  slavery  could 
not  have  been  devised,  and  this  disgraceful  object-lesson 
was  carried  into  every  State,  county,  and  city. 

Nor  was  the  opening  of  New  Mexico  and  Utah  to 
slavery  any  more  quieting.  It  encouraged  the  aggressive 
temper  which  had  already  won  so  much ;  it  introduced 
a  new  principle,  and  put  the  possessions  of  the  United 
States  that  were  open  to  settlement  in  new  relations  to 
the  South  and  the  North.  The  territory  which  became 
the  State  of  Kansas  was  most  of  it  covered  by  the  Mis 
souri  Compromise.  The  southwest  corner  lay  in  New 
Mexico.  It  was  surrounded  on  three  sides  by  lands  either 
occupied  by  slavery  or  open  to  it.  Hence,  when  Kansas 
and  Nebraska  were  organized,  the  entire  question  of  their 
relation  to  slavery  was  reconsidered,  and  resulted  in 
leaving  them  as  open  territory,  subject  to  its  introduc 
tion.  But  no  sooner  had  the  Missouri  Compromise  been 
repealed  and  the  territorial  governments  of  Kansas  and 
Nebraska  been  established,  in  1854,  than  an  effort  was 
made  to  anticipate  the  South  in  the  settlement  of  Kansas, 
the  territory  most  accessible  to  slavery.  This  resulted  in 


8o  The  Growth  of  Nationality 

a  strife  during  the  territorial  history  of  the  State  which 
often  approached  civil  war.  It  brought  to  the  front  such 
men  as  John  Brown,  and  prepared  the  public  mind  for  the 
larger  conflict  which  it  helped  to  usher  in.  No  com 
promise  ever  did  less  to  settle  the  questions  involved  in 
it,  or  to  soothe  the  popular  feeling  concerning  them.  If 
any  prophets  were  ever  blind,  it  was  those  who  enforced 
the  compromise  as  a  means  of  anticipating  civil  war.  If 
any  statesmanship  of  expediency  was  ever  utterly  refuted 
by  the  facts  following  after,  it  was  the  statesmanship  of 
the  political  sages  who  dealt  with  this  issue.  It  led  on, 
amid  hopeless  confusion,  to  a  disaster  it  in  no  way 
mitigated.  While  our  punishment  as  a  people  was  post 
poned  by  our  concessions,  no  part  of  it  was  abated,  no  jot 
of  it  lost.  The  evils  from  which  we  have  suffered  so 
much,  and  still  have  much  to  suffer,  were  accumulated 
upon  us  in  this  period  of  propagation.  We  had  much 
folly  and  perversity  to  correct,  and  they  were  corrected 
in  a  way  thorough  and  patient. 

§  22.  The  results  were  made  more  pathetic  from  the 
character  of  those  who  helped  to  shape  them.  Never 
has  the  Senate  of  the  United  States  contained  three  men 
of  more  ability,  experience,  and  patriotism  than  Calhoun, 
Clay,  and  Webster.  When  the  last  compromise  took 
form  they  were  all  old  men,  long  honored  by  the  nation; 
in  this  forced  reconciliation  they  were  doing  their  last 
work.  Calhoun  was  a  striking  example  of  misdirected 
conscience  and  perverted  ability.  He  accepted  slavery 
and  gave  himself  without  stint  or  reservation  to  its  de 
fence.  Around  this  false  centre  he  developed  a  firm  and 
self-consistent  character.  In  the  very  month  of  his 
death,  a  speech  he  was  unable  to  deliver  was  read  in  the 
Senate,  full  of  the  old  undeniable — if  slavery  is  under  no 


Strife  between  Groups  of  States         81 

ban  in  the  moral  world — arguments  and  of  the  familiar 
prognostications  of  evil.  He  saw  the  crest  of  the  coming 
wave  that  was  to  purge  the  land,  and  thought  it  the  wave 
which  was  to  destroy  it.  The  life  of  John  C.  Calhoun 
was  the  discourse  of  history  on  the  text,  "  Insecure  moral 
foundations  render  nugatory  talent,  conviction,  and 
devotion." 

Few  of  our  statesmen  have  been  so  patriotic  and  so 
popular  as  Henry  Clay.  He  was  a  leader  in  the  forma 
tion  of  the  Whig  party,  whose  purpose  it  was  to  rally  the 
national  strength  and  build  up  the  common  life.  It  arose 
in  antagonism  to  that  individualism,  first  in  the  State  and 
then  in  the  citizen,  which  has  made  our  national  develop 
ment  so  slow  and  painful.  His  policy,  though  one  of 
progress,  was  also  one  of  prudence,  patience,  and  concilia 
tion.  He  was  active  in  the  concessions  which  disguised 
the  discomfiture  of  South  Carolina  in  the  days  of  nullifi 
cation.  He  brought  the  same  temper  to  the  slavery  con 
troversy,  only  to  blight  his  own  worthy  ambitions  and 
patch  up  a  peace  that  had  no  abiding  power.  He  failed 
by  not  catching  the  key-note  of  the  situation,  and  by  sup 
posing  that  the  nation  could  shake  itself  loose  from  the 
retributive  net  that  had  begun  to  fall  upon  it.  In  spite 
of  all  his  sagacity  and  gracious  sentiment,  he  suffered 
partial  wreck  on  the  rock  of  national  duty,  a  most  regret 
table  disaster  in  our  history. 

The  case  of  Daniel  Webster  was  decisively  different 
from  that  of  the  other  two,  and  with  an  admonition 
pathetic  indeed,  but  still  more  instructive.  In  gravity 
of  thought,  dignity  of  expression,  and  forensic  weight, 
Webster  stands  alone  among  American  statesmen.  His 
moral  convictions  were  by  no  means  as  clear  and  as  im 
perative  as  his  intellectual  ones.  He  had  rendered  great 

6 


82  The  Growth  of  Nationality 

service  to  the  country  by  an  adequate  interpretation  and 
earnest  defence  of  the  Constitution  as  a  bond  of  national 
life.  It  is  entirely  possible  to  suppose  that  he  felt  the 
Union  endangered  by  the  growing  bitterness  of  strife  be 
tween  its  two  divisions,  and  that  he  thought  it  the  duty 
of  a  sober-minded  statesman  to  make  needful  conces 
sions,  to  enforce  existing  claims,  and  to  patch  up  a  peace 
on  each  new  occasion.  This  temper  characterized  his 
public  action.  He  ventured  only  on  that  advocacy  of 
liberty  which  was  consistent  with  existing  circumstances. 
When,  therefore,  the  struggle  took  on  new  violence  and 
disclosed  unusual  danger,  he  was  in  no  condition  to  con 
front  it  with  principles  that  should  rise  distinctly  above 
familiar  methods  and  the  indications  of  the  hour.  In  his 
speech  of  the  seventh  of  March  he  supported  the  com 
promise  measures,  accepted  the  Fugitive  Slave  law,  and 
succumbed  to  the  menace  involved  in  the  attitude  of  the 
South. 

This  defection,  as  it  was  felt  to  be,  drew  out  the  sever 
est  censure  of  the  growing  anti-slavery  party.  Whittier 
in  his  poem  entitled  Ichabod,  put  him  in  a  pillory,  suit 
able  in  its  strength,  in  its  deep  spiritual  indignation  and 
regret,  to  the  greatness  of  the  criminal  it  held.  Signally 
baffled  in  his  legitimate  ambition,  he  subjected  himself  to 
the  suspicion  of  having  made  one  more  bid  for  the  national 
favor.  Whatever  may  have  been  the  conflict  of  motives 
in  his  own  mind,  the  one  instructive  fact  is  that  he,  in 
common  with  the  great  statesmen  about  him,  utterly 
miscalculated  the  nature  and  the  force  of  the  facts  with 
which  he  was  dealing.  The  expediency  and  patriotism 
and  practicality  which  led  him  and  them  to  bind  once 
more  together  the  shattered  raft  and  push  it  again  into 
the  current,  were  utterly  at  fault.  In  failing  to  apprehend 


Strife  between  Groups  of  States         83 

the  moral  forces  involved  in  the  struggle,  they  failed  to 
understand  and  adequately  to  treat  the  struggle  itself.  A 
statesmanship  of  concessions  and  adjustments,  irrespec 
tive  of  principles,  was  distinctly  condemned  by  the  results 
— both  those  which  came  to  its  ablest  advocates  and  to 
the  country  as  a  whole. 

§  23.  It  is  this  fact  which  enables  us  better  to  com 
prehend  the  effect  produced  by  the  assertion  of  Lincoln 
at  Springfield,  "  The  Union  cannot  endure  half  slave, 
half  free  "  ;  and  the  words  of  Seward  uttered  a  little  later 
at  Rochester,  characterizing  the  struggle  as  an  "  irre 
pressible  conflict."  These  assertions  were  little  more 
than  truisms,  and  yet  they  produced  the  effects  of  a 
revelation,  so  great  was  the  darkness  into  which  they 
were  flashed.  They  exposed  the  utter  waste  and  folly  of 
the  methods  of  Clay  and  Webster,  which,  if  they  deferred 
the  day  of  reckoning,  also  made  it  the  more  disastrous 
when  it  came.  The  North  saw  but  slowly  and  reluctantly 
that  a  choice  must  be  made  between  conflicting  principles 
and  social  forms  if  national  life  was  to  be  achieved.  The 
South  grasped  the  truth  more  quickly,  but  applied  it  un 
hesitatingly  in  behalf  of  their  own  institutions.  The  end 
of  the  strife  was  approaching  when  we  began  to  see  that 
compromises  could  have  no  assuaging  force.  Lincoln  put 
this  principle  on  the  political  side.  Seward  put  it  more 
broadly  on  the  ethical  side.  The  difference  lay  deep  in 
the  minds  of  the  two  men.  Seward  was  a  leader  who 
awakened  moral  enthusiasm  and  gave  new  light  to  ideas. 
Lincoln  was  a  leader  who  carefully  studied  the  changes 
of  popular  sentiment,  and  moved  no  faster  than  the 
people  were  prepared  to  follow.  He  proclaimed  an  irre 
concilable  political  temper,  not  a  conflict  of  moral  prin 
ciples.  What  we  owe  to  Lincoln  was  that  timid  courage 


84  The  Growth  of  Nationality 

by  which  he  held  fast  to  the  nation  on  the  one  hand,  and 
moved  with  it  toward  liberty  on  the  other. 

§  24.  Two  new  lines  of  reasoning  were  distinctly  de 
veloped  in  connection  with  these  last  stages  of  conflict. 
Douglas,  who  professed  entire  indifference  to  the  successes 
or  failures  of  slavery,  reported  the  bill  of  1854  to  organize 
the  territories  of  Kansas  and  Nebraska,  the  question  of 
slavery  being  left  to  the  decision  of  the  people.  Earlier, 
he  had  favored  a  division  of  territory  and  an  extension  of 
the  line  of  the  Missouri  Compromise  to  the  Pacific.  He 
now  accepted  the  choice  of  the  people  in  each  territory 
as  the  best  expression  of  Democratic  doctrine.  Dickin 
son  of  New  York  had  brought  forward  the  doctrine  in 
1847,  and  Cass  had  favored  it.  It  was  now  adopted  as 
an  ultimate  solution  of  the  difficulty  and  a  rallying-cry  of 
the  party. 

Popular  sovereignty  was  characterized  as  squatter  sov 
ereignty,  and  gave  graphic  expression  to  that  weakness 
of  ideas  and  of  will  from  which  the  Democratic  party 
has  so  often  suffered.  Identifying  liberty  with  the  activ 
ity,  the  capricious  activity,  of  the  individual,  reducing 
the  province  of  government  to  its  lowest  terms,  taking 
its  ruling  temper  from  rural  and  border  life,  this  party 
has  shown  itself  powerless  in  the  presence  of  any  great 
duty  or  new  civilizing  process.  It  has  seldom  been  able 
to  resist  ill-advised  action  ;  but  rarely  to  offer  well-advised 
action.  It  has  held  an  extreme  individualism  which  can 
not  fail,  in  the  end,  to  paralyze  national  growth.  As 
civilization  advances,  as  social  interests  are  extended  and 
interlocked,  as  they  jostle  and  threaten  each  other,  like 
vehicles  in  a  crowded  thoroughfare,  in  many  new  ways, 
the  doctrine  of  individualism  means  confusion  and  an 
archy.  No  modern  community  with  its  immense  de- 


Strife  between  Groups  of  States         85 

mands,  its  subtile  conditions  of  prosperity,  health,  culture, 
and  refinement,  can  do  anything  adequately  under  the 
notion  of  a  free  appropriation  by  individuals  of  advan 
tageous  opportunities,  and  the  submission  of  the  public 
to  merely  personal  thrift  and  enterprise.  No  better  illus- 
tration  of  the  chronic  weakness  of  the  extreme  Demo 
cratic  idea  can  be  found  than  the  relief  with  which  the 
Democratic  party  adopted  this  notion  of  squatter  sov 
ereignty.  The  accidents  attending  on  the  early  history 
of  a  territory  were  allowed  to  settle  its  destiny.  The 
nation  to  which  it  belonged,  of  which  it  was  soon  to 
become  a  constituent,  giving  and  sharing  national  char 
acter,  was  to  stand  idly  by  and  allow  first  settlers — a  class 
least  responsible  and  soon  to  be  replaced — to  determine 
the  great  collective  interests  that  were  to  follow  after 
them.  Counsel,  statesmanship,  authority,  responsibility 
were  all  to  be  waived  in  the  presence  of  a  scant  population, 
in  full  pursuit  of  its  own  immediate  interests.  Squatter 
sovereignty  is  an  abdication  of  national  life,  a  reductio  ad 
absurdum  of  pure  Democratic  doctrine.  '  The  notion  of 
liberty  can  be  carried  but  one  step  farther,  and  each  man 
be  allowed  to  do  what  is  right  in  his  own  eyes.  Much 
the  same  weakness  inheres  in  "  local  option."  The 
smallest  political  unit  in  the  State  is  left  to  determine 
public  policy  in  a  most  feeble,  shifting  way,  while  the 
State,  as  a  whole,  is  checkered  over  with  changeable  and 
conflicting  patches  of  light  and  darkness.  Methods  with 
no  strength  in  themselves  and  mutually  weakening  each 
other,  methods  that  are  sustained  with  difficulty  when  all 
are  united  in  them,  are  accepted  in  helter-skelter  fashion 
as  the  ultimate  product  of  self-government.  It  is  not 
strange  that  so  long  a  stride  toward  anarchy  as  squatter 
sovereignty  hastened  the  Civil  War. 


86  The  Growth  of  Nationality 

§  25.  The  Civil  War,  when  it  came,  came  not  as  the 
fruit  of  any  fresh  circumstances.  It  was  simply  the  ripen 
ing  of  events  that  had  long  been  in  progress.  The  forma 
tion  of  the  Republican  party,  resting  on  the  principle  of 
no  further  concession  to  slavery,  brought  about,  on  the 
occasion  of  its  first  national  victory,  an  inevitable  collision. 

The  second  notable  advance  of  ideas,  looking  to  a  doc 
trine  of  reconciliation,  was  offered  by  a  decision  of  the 
Supreme  Court.  The  Dred  Scott  case — Dred  Scott  vs. 
Sandford,  it)  Howard,  393 — was  brought  in  1854,  decided 
in  1856,  and  published  in  1857.  The  decision  is  one  of 
the  most  voluminous  and  labored  of  those  proceeding 
from  that  great  Court.  It  extends  over  240  pages.  It 
was  withheld  till  the  presidential  election  was  over,  and 
launched  on  the  flood  of  the  Democratic  victory  that 
brought  Buchanan  into  office.  It  was  intended  to  bring 
the  slavery  controversy  to  an  end,  and  to  establish  slavery 
as  a  national  institution  on  the  firmest  judicial  basis. 
This  the  decision  would  have  accomplished  if  it  had  met 
with  the  acceptance  which  has  usually  come  to  principles 
announced  by  the  Supreme  Court.  It  was  thorough-going 
and  left  no  room  for  evasions  or  compromises.  As  com 
pared  with  popular  sovereignty,  it  was  final,  and  took  the 
entire  question  out  of  politics,  a  thing  so  devoutly  longed 
for  when  a  moral  principle  begins  to  harass  the  political 
gamester.  And  yet  it  utterly  failed  in  its  purpose.  It 
danced  about  a  brief  hour  on  the  angry  waves,  adding 
one  more  element  of  confusion,  and  then  disappeared 
forever. 

Dred  Scott,  a  slave  in  Missouri,  had  been  taken  by  his 
master  into  Illinois,  and  later  to  Fort  Snelling  in  Minne 
sota,  then  a  territory.  After  a  residence  of  a  considerable 
period  in  these  places  the  owner  returned  to  Missouri. 


Strife  between  Groups  of  States         87 

He  left,  at  his  death,  Scott  and  his  children— one  of  them 
born  in  freedom — as  slaves.  Scott  sued  Sandford,  a  resi 
dent  of  New  York  and  the  executor  of  the  estate,  for  his 
liberty.  The  Supreme  Court  of  Missouri  decided  against 
the  claim.  A  suit  was  then  brought  in  the  Circuit  Court 
of  the  United  States,  and  carried  thence  to  the  Supreme 
Court.  The  first  question  raised  was  whether  Scott  had 
a  right  to  sue;  whether  he  was  a  citizen  of  the  United 
States.  This  question  was  considered  at  much  length  by 
Chief-Justice  Taney  in  giving  the  decision  of  the  court, 
and  was  decided  in  the  negative.  Six  judges  concurred 
with  him  in  the  general  conclusion,  and  two,  Justices 
Curtis  and  McLean,  dissented. 

The  gist  of  the  argument  was  expressed  in  the  words 
which  gave  a  great  shock  to  the  public  mind,  that  the 
black  man  was  possessed  of  no  rights  which  the  white  man 
was  bound  to  respect.  The  decision  was  a  thorough  and 
exhaustive  effort  to  divest  the  black  man  of  all  civil  rights 
and  reduce  him  to  the  level  of  an  animal,  over  which 
property  claims  have  unimpeded  sway.  This  was  the 
logical  conclusion  of  the  growing  claims  of  slave-holders, 
and,  if  accepted,  would  have  made  slavery  an  institution 
commensurate  with  American  soil.  The  right  of  the 
master  would  have  been,  in  American  jurisprudence,  a 
common-law  right,  enforced  in  all  courts.  The  argument 
looked  to  a  final  settlement  of  the  claims  of  Scott,  and 
all  kindred  claims,  under  American  law,  and  was  none 
too  elaborate  for  so  sweeping  a  purpose. 

The  Court  held  that  negroes  were  not  recognized  by  the 
States  as  citizens  at  the  time  of  the  formation  of  the  Con 
stitution;  that  the  only  status  which  came  under  the 
consideration  of  the  Constitution  and  was  assigned  them 
in  it  was  that  of  slaves;  that  no  change  of  public  opinion 


88  The  Growth  of  Nationality 

since  that  time  was  of  moment  as  affecting  this  question ; 
that  no  State,  by  subsequent  legislation,  could  make  a 
negro  a  citizen  of  the  United  States,  or  entitle  him  to  the 
rights  of  a  citizen. 

Chief- Justice  Taney  reviewed  at  great  length  the 
various  ways  in  which  civil  rights  had  been  denied  to 
negroes  or  had  been  disregarded  in  the  Northern  States 
and  by  civilized  nations,  and  deduced  from  this  historic 
inquiry,  this  prolonged  record  of  injustice,  the  principle, 
inductively  established,  that  the  negro  had  never  gained 
any  claims  to  civil  rights ;  that  he  stood  in  the  govern 
ment  of  the  United  States  as  one  bereft  of  the  protection 
of  law.  The  instances  adduced  in  support  of  this  view 
were  wide,  various,  and  numerous,  sufficiently  so  to  have 
established  any  principle  that  commended  itself  to  the 
moral  sense  and  to  sound  reason.  If,  like  the  conflicting 
principle  enunciated  by  Lord  Mansfield,  that  English 
soil  makes  free  men,  it  had  looked  toward  progress,  it 
would  have  found  inevitable  acceptance.  If  Taney  had 
pushed  his  opinion  down  the  current  of  ethical  events 
instead  of  up  that  current,  it  would  not  have  returned  so 
quickly  upon  him  as  an  empty  enumeration  of  injuries. 
To  be  sure,  as  shown  by  Curtis,  important  cases,  wholly 
in  the  opposite  direction,  were  neglected  in  the  presenta 
tion  of  the  Court,  but  no  principle  of  law  is  established 
by  virtue  of  absolute  conformity  to  it  in  previous  action. 
This  would  imply  that  it  was  now,  and  always  had  been, 
an  accepted  conclusion.  The  acceptance  expresses  the 
fact  that  the  law,  as  now  declared,  has  been  slowly 
emerging  from  many  cases;  that  it  is  consonant  with 
existing  conditions,  and  holds  in  it  the  germ  of  civil 
growth  and  social  strength.  Action  which  comes  under 
the  suspicion  of  injustice  does  not  make  or  support  a 


Strife  between  Groups  of  States          89 

precedent.  Taney  reasoned  from  wrong  and  immorality 
as  he  might  have  wisely  reasoned  about  rights  respected 
and  moral  relations  established  ;  he  made  a  great  principle 
of  law  rest  simply  on  a  numerical  induction  of  cases.  A 
legal  principle  is  always  more  than  this.  It  is  an  address 
to  the  sense  of  right  as  an  harmonizing  force  in  human 
conduct.  There  is  present  an  ideal  and  purified  social 
relation  to  which  the  conclusion  announced  conforms. 
The  deepest  failure  of  the  opinion  lay  not  in  the  insuffi 
ciency  of  the  cases  which  supported  it,  but  in  the  un- 
soundness  of  the  underlying  social  principle. 

The  second  leading  point,  also  discussed  at  length,  was 
the  right  of  Congress  to  exclude  slavery  from  the  terri 
tories  of  the  United  States  acquired  since  the  adoption 
of  the  Constitution.  This  discussion  has  been  regarded 
as  obiter  dictum,  since,  by  the  first  point,  the  suit  was 
dismissed  as  beyond  the  jurisdiction  of  the  Court.  It 
was  intended,  however,  to  subserve  a  very  important 
political  purpose.  Taney  claimed  the  right  of  the  su 
perior  court  to  fully  present  principles  involved  in  the 
action  of  the  lower  court,  even  though  that  action  had 
exceeded  its  jurisdiction.  Thus  a  political  doctrine 
gained  the  color  of  a  judicial  decision  in  the  affirmation 
that  Congress  could  not  exclude  slavery  from  territory 
acquired  by  the  States  in  common.  Whatever  agree 
ments  had  been  made  in  reference  to  territory  at  the  time 
of  the  adoption  of  the  Constitution  did  not  hold  in  con 
nection  with  possessions  since  secured  at  the  public  ex 
pense.  These  belonged  to  all  in  common ;  came  under 
the  Constitution,  which  recognized  slavery  and  put  all  the 
States  of  the  Union  on  the  same  footing.  It  did  not 
belong  to  Congress  to  take  from  any  State  or  States  this 
universal  right. 


90  The  Growth  of  Nationality 

This  decision  of  the  Supreme  Court,  making  the  rights 
of  the  master  in  the  slave  co-extensive  with  other  prop 
erty  rights,  and  setting  aside  any  limitation  by  the  United 
States  of  this  ultimate  claim,  became  the  accepted  creed 
of  the  propagandist  of  slavery.  It  opened  the  eyes  of  the 
nation  to  the  result  to  which  it  was  tending.  It  carried 
division  into  the  Democratic  party.  Popular  sovereignty 
was  no  longer  a  sufficient  solution.  The  people  them 
selves  were  losing  their  power  to  touch  these  fundamental 
rights,  taken  under  the  protection  of  the  courts.  Resi 
dence  in  a  free  State  gave  the  slave  no  indefeasible 
liberty.  The  conclusion  would  quickly  follow  that  it 
gave  no  liberty  ;  that  rights  of  the  master,  of  this  com 
mon-law  character,  must  be  everywhere  guaranteed. 

§  26.  Taney  and  his  colleagues,  able  and  astute  as 
they  were,  failed  at  once  and  signally  because  they  neg 
lected  that  ethical  law  which  runs  parallel  with  human 
law,  and  from  which  human  law  derives  its  strength. 
The  entire  slavery  controversy  is  a  disproof  of  the  asser 
tion,  so  early  made  in  the  discussion,  that  the  moral 
character  of  the  institution  had  nothing  to  do  with  its 
legal  bearings.  The  moral  element  proved  itself  insepa 
rable  from  the  economic,  social,  and  civil  elements  in 
volved  in  it,  and  baffled  us  constantly  in  every  effort  to 
divide  them.  The  two  parts  of  the  nation,  North  and 
South,  were  of  one  blood,  one  language,  and  one  faith. 
Economic  ties  existed  between  them  that  long  resisted 
the  growing  strain,  and  yet  we  came  near  being  rent 
asunder  and  sent  forth  in  two  hostile  lines  of  development 
by  a  question  of  social  ethics.  The  war  was  one  of  in 
stitutions.  There  was  no  strife  between  the  North  and 
the  South  other  than  that  which  grew  out  of  slavery. 
The  North  shared,  and  more  than  shared,  the  aversion  of 


Strife  between  Groups  of  States         91 

the  South  for  the  negro.  The  difference  in  race  reduced 
sympathy  to  its  lowest  terms,  and  made  the  question  an 
abstract  question  of  slavery  simply.  It  was  this  which 
was  decided  by  the  war,  the  ethical  relation  of  man  to 
man. 

Slavery  had  reached  its  climax  of  power  at  the  breaking 
out  of  the  rebellion.  Slaves  bore  a  large  price.  The 
domestic  slave-trade  was  in  full  flow.  Efforts  were  being 
made  to  resume  the  foreign  trade.  Whatever  strength 
the  institution  could  develop  was  present.  The  war  was 
a  deadly  one,  fought  to  a  final  issue.  It  did  not  end  till 
all  power  of  resistance  was  gone.  Free  labor  and  slave 
labor  settled  their  respective  power  as  social  builders  on 
innumerable  battle-fields,  and  left  no  opportunity  of  re 
newing  the  struggle  or  recovering  the  ground  that  had 
been  lost.  The  advantages  which  accrue  from  slavery— 
and  these  advantages  are  very  considerable  when  taken 
in  connection  with  war — and  the  losses  and  gains  of 
liberty  were  tested,  and  a  final  verdict  given  in  favor  of 
liberty.  This  finality  of  the  bitter  struggle  was  its  re 
deeming  feature.  It  did  thoroughly  what  it  did,  and  left 
the  nation  free  to  recover  unity  and  strength  along  new 
lines  of  development.  What  was  affirmed  was  an  ethical 
truth  which  the  world  had  long  been  on  the  point  of  ac 
cepting,  and  which  will  never  again  be  held  in  doubt. 


CHAPTER    IV 

Reconstruction  and  Nationality 

§  I.  THE  years  which  immediately  followed  the  war 
were  not  years  fruitful  in  a  growth  of  national  temper. 
This  arose  partly  because  of  the  bitterness  and  extreme 
destitution  left  by  the  war,  partly  because  of  the  mis 
takes  of  reconstruction,  and  partly  because  of  the  un 
avoidable  evils  incident  to  so  violent  and  sudden  a 
social  change.  In  shaking  off  slavery,  we  could  not 
wholly  shake  off  the  evils  which  were  inherent  in  it. 
It  has  been  a  very  slow  and  painful  process  for  two  races, 
of  such  diverse  capacity  and  attainment,  which  had  known 
each  other  only  under  the  relation  of  slavery,  to  establish 
workable  and  bearable  terms  of  liberty ;  and  this  the  more 
because  the  poverty  of  the  South  left  it  querulous  and 
with  few  occupations  that  could  absorb  and  direct  labor. 
Many  mistakes  and  some  misanthropy  may  readily  be 
conceded  to  these  trying  circumstances.  A  growing  in 
dustrial  prosperity  now  begins  to  give  occasion  for  more 
diversity  of  service  and  to  unite  whites  and  blacks  in 
production.  It  also  promotes  a  concord  of  sentiment  be 
tween  the  North  and  the  South;  industry,  diffused  by  lib 
erty  through  all  classes,  resumes  its  natural  binding  power. 

Not  only  the  victory  itself,  but  the  long,  hard  struggle 
which  preceded  it,  tended  strongly  to  give  new  force  to 
national  ties.  The  preservation  of  the  nation  had  been 
a  supreme  idea  for  a  series  of  years.  Every  local  interest 


Reconstruction  and  Nationality         93 

and  feeling  had  given  way  before  it.  The  power  of  the 
General  Government  had  been  called  out  to  the  full  and 
been  increased  beyond  all  precedent.  Great  armies,  large 
expenditures,  high  positions,  heavy  taxation  had  become 
familiar  to  the  public.  Congress  and  the  country  had 
ceased  to  hesitate  at  any  measure  which  seemed  to  lie  in 
the  line  of  a  successful  prosecution  of  the  war.  The 
nation  loomed  large,  and  cast  into  its  shadow  personal 
and  local  disaster.  The  Constitution  was  used  with  the 
freedom  incident  to  a  revolutionary  exigency. 

§  2.  This  bold  temper  was  shown  in  the  Legal-Tender 
Act.  Adequate  and  immediate  funds  were  a  supreme 
necessity.  The  demand  was  sudden,  and  far  transcended 
anything  for  which  our  history  prepared  us.  It  was  met, 
in  part,  by  the  issue  of  greenbacks,  and  by  making  them 
legal  tender.  No  right  looking  to  such  a  result  had 
been  conferred  by  the  Constitution.  The  right  to  issue 
bills  of  credit  had  been  withheld  from  the  States;  and 
when,  in  the  convention  which  framed  the  Constitution, 
a  concession  of  the  right  to  the  General  Government  had 
been  proposed,  the  proposition  had  been  rejected.  Con 
gress  affirmed  it  and  exercised  it  as  a  right  involved  in 
the  larger  right  to  provide  for  the  common  defence.  The 
implied  rights  grew  as  the  urgency  grew  under  primary 
ones.  To  Congress  the  issue  of  these  bills  of  credit 
seemed  the  only  immediate  and  certain  way  of  securing 
the  needed  funds.  If  there  was  such  a  necessity,  Con 
gress  was  certainly  right  in  making  the  supreme  idea 
supreme,  in  letting  the  public  safety  carry  with  it  the 
means  requisite  to  the  end.  To  sacrifice  the  Constitution 
itself  to  a  critical  and  tender  construction  of  its  provisions 
would  have  been  self-destruction.  Congress  claimed  and 
exercised  a  power  which  it  thought  essential  to  self- 


94  The  Growth  of  Nationality 

preservation.  If  it  fell  into  error,  it  was  an  error  of 
judgment  as  to  the  wisdom  and  urgency  of  the  measure. 
The  haste,  confusion,  and  pressure  of  wants  gave  occasion 
to  misjudgment.  We  can  hardly  pronounce  a  measure 
constitutional  or  unconstitutional  as  we  deem  it  wise  or 
unwise.  This  has  been  an  evil  in  our  government :  that 
it  has  led  us  to  put  in  the  foreground  the  question  of 
constitutionality  when  we  might  better  have  given  that 
position  to  the  question  of  wisdom.  In  this  case,  Con 
gress  laid  hold  of  a  doubtful  right  and  exercised  it  in  an 
unwise  way,  but  did  it  under  a  purpose  so  supreme  as  to 
purge  the  act  of  its  taint. 

The  Supreme  Court  sanctioned  this  issue  with  reluc 
tance  and  piecemeal.  It  was  decided,  in  the  case  of  Hep 
burn  vs.  Griswold,  8  Wallace,  603,  that  Congress  could 
not  make  Treasury  notes  legal  tender  for  debts  contracted 
before  the  passage  of  the  act.  The  decision  was  given  in 
1869,  and  was  made  five  to  three.  Chief- Justice  Chase 
refused  to  sustain  an  act  which  he  had  recommended  as 
Secretary  of  the  Treasury.  If  he  was  right  in  this  later 
judgment,  he  must  have  ceased  to  accept  self-preservation 
as  a  supreme  law. 

In  the  case  of  Parker  vs.  Davis,  12  Wallace,  457,  the 
Court  decided,  five  to  four,  that  Congress  had  the  power, 
in  a  season  of  exigency,  to  make  Treasury  notes  legal 
tender.  In  the  case  of  Juillard  vs.  Greenman,  no  U.  S., 
421,  the  power  of  Congress  was  fully  sustained  as  one  that 
might  be  exercised  in  peace  or  in  war.  This  was  the  only 
logical  conclusion.  Congress  can  hardly  be  conceded  a 
power  which  it  is  at  liberty  to  exercise  only  in  an  emer 
gency.  Congress  itself  would  judge  that  emergency,  and 
so  extend  its  power  at  its  own  pleasure.  If  the  Supreme 
Court  were  left  to  determine  whether  the  exigency  was 


Reconstruction  and  Nationality         95 

sufficient  to  justify  the  use  of  the  power,  it  would  thereby 
take  upon  itself  the  task  of  determining  the  legislation 
fitted  to  a  given  political  occasion,  and  in  so  doing  sub 
stitute  its  action  for  the  action  of  the  legislature.  We 
must  endure  the  mistakes  of  legislatures  and  of  courts 
alike.  They  cannot  directly  correct  each  other.  Un 
doubtedly  the  decisions  of  constitutionality  and  uncon 
stitutionally  made  by  the  Supreme  Court  will  be  affected 
somewhat  by  its  sense  of  the  necessity  and  wisdom  of  the 
action  under  discussion;  but  its  renderings  of  the  law 
must  be  explicit  and  final,  not  conditional.  It  cannot 
undertake  to  criticise  the  manner  in  which  the  legislature 
acted,  but  must  simply  decide  whether  that  action  was 
within  the  scope  of  its  power. 

§  3.  The  immediate  and  urgent  questions  of  recon 
struction — the  restoring  of  the  subdued  States  to  the 
Union  and  the  terms  on  which  it  should  take  place — re 
vived  the  old  discussion  of  the  position  held  by  the  States 
in  the  Union.  Did  the  States  in  rebellion  still  retain  a 
political  integrity,  an  indefeasible  right,  not  affected  by 
their  action,  and  open  to  resumption  at  pleasure  ?  The 
logic  of  events  now  prevailed  with  comparative  ease. 
The  war  disproved  the  doctrine  of  secession,  and  the 
exigency  of  restoration  forbade  the  doctrine  of  a  right  to 
a  free  return.  Congress  held  that  the  States  which  had 
suffered  defeat  were  conquered  territory,  subject  to  such 
restrictions  as  the  general  welfare  required,  and  to  be  re 
stored  to  the  Union  only  on  terms  which  would  be  likely 
to  prevent  any  recurrence  of  strife.  The  safety  of  the 
nation  admitted  of  no  other  doctrine  than  that  it  itself, 
as  expressed  in  the  General  Government,  must  settle  the 
terms  of  peace ;  that  it  conquered  the  right  to  make  peace. 
And  on  this  doctrine  reconstruction  took  place. 


96  The  Growth  of  Nationality 

Yet  the  Supreme  Court  did  not  altogether  accede  to 
this  opinion.  In  the  case  of  Texas  vs.  White,  7  Wallace, 
700,  the  claims  of  Texas,  prior  to  reconstruction,  to  cer 
tain  United  States  bonds  were  conceded.  Chief-Justice 
Chase,  in  giving  the  decision,  said:  "  The  Constitution 
in  all  its  provisions  looks  to  an  indestructible  union  com 
posed  of  indestructible  States."  This  opinion  regarded 
the  form  of  things — a  form  that  had  been  broken  up  and 
had  passed  away — rather  than  the  substance  of  things. 
In  this  decision,  and  in  the  legal-tender  cases,  Chase 
showed  a  remarkable  separation  between  his  theoretical 
and  his  practical  outlook.  As  Secretary  of  the  Treasury 
he  hesitated  at  nothing  that  was  needful  for  success;  as 
Chief-Justice  he  felt  constrained  to  condemn  and  undo 
his  own  most  admirable  action.  If  this  view  had  pre 
vailed,  it  would  have  been  impossible,  having  fought  the 
war  to  an  end,  to  have  harvested  its  results  in  a  permanent 
peace.  Justice  Miller,  Swayne,  and  Grier  dissented.  It 
was  the  opinion  of  Chief-Justice  Chase  that  Texas  con 
tinued  to  be  a  State  of  the  Union  notwithstanding  her 
rebellion.  This  view  was  the  faint  vanishing  shadow,  in 
a  strangely  distorted  form,  of  the  old  doctrine  of  State 
rights.  The  State  retained  its  separate  identity  in  the 
Union  in  spite  of  the  General  Government  and  in 
spite  of  itself.  Justice  Grier,  in  dissenting,  affirmed, 
with  more  practical  insight,  that  the  question  before 
them  was  "  a  question  of  facts  only.  Politically,  Texas 
was  not  a  State  of  the  Union."  He  thus  left  the 
entire  field  of  reconstruction  open  to  the  action  of  Con 
gress.  The  theoretical  view — always  so  strong  with  the 
judicial  mind — prevailed  with  the  majority,  and  the  prac 
tical  view  found  expression  in  the  minority. 

§  4.     The  three  amendments  to  the  Constitution,  the 


Reconstruction  and  Nationality         97 

Thirteenth,  Fourteenth,  and  Fifteenth,  which  greatly 
widened  the  Constitution  in  its  temper,  and  under  which 
reconstruction  took  place,  gave  occasion,  in  their  applica 
tion,  to  a  redefining  of  the  relation  of  the  States  to  the 
General  Government.  For  a  time  the  local  government 
of  the  States  threatened  to  be  greatly  restricted  by  them. 
These  amendments,  especially  the  first  clause  of  the  Four 
teenth  Amendment,  were  capable  of  a  rendering  which 
would  much  abridge  the  action  of  the  States. 

'  The  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privi 
leges  or  immunities  of  citizens  of  the  United  States;  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property  with 
out  due  process  of  law,  nor  deny  any  person  within  its  juris 
diction  the  equal  protection  of  the  law." 

These  amendments  were  intended  to  restrict  the  power  of 
the  States  in  reference  to  the  negro,  and  yet  could  be  so 
applied  as  to  abridge  it  in  reference  to  all  citizens.  The 
restrictions  might  be  given  a  general,  rather  than  a  spe 
cific  character.  The  clause  just  referred  to  defines  a  citizen 
of  the  United  States,  and  then  proceeds  to  protect  him  in 
his  rights.  It  may  seem  strange  that  the  question  of  citi 
zenship  had  been  left  so  long  in  obscurity,  and  that  the 
laws  of  naturalization  laid  down  by  the  United  States,  and 
which,  from  the  nature  of  the  case,  should  have  been  exclu 
sive,  were  not  made  to  shut  out  a  great  variety  of  lax  laws 
on  the  part  of  the  States.  This  arose  from  the  fact  that 
the  States  at  the  time  of  the  adoption  of  the  Constitution 
were  in  possession  of  the  field,  and  did  not  contemplate 
a  surrender  of  their  own  loose  and  variable  methods. 


98  The  Growth  of  Nationality 

One  might  become  a  citizen  of  a  State;  be  allowed  to 
vote  in  its  elections,  and,  as  associated  therewith,  in  the 
election  of  United  States  officers,  and  yet  have  no  claims 
to  citizenship  in  the  United  States.  The  question  of 
citizenship  in  the  State  and  in  the  United  States  had 
been  left  to  assume  an  ill-defined  and  changeable  form. 
The  great  number  of  immigrants,  and  the  difficulty  of 
conceding  them  political  rights  in  the  States  without  at  the 
same  time  conceding  them  similar  rights  in  the  United 
States, — the  qualifications  of  electors  of  members  of  the 
House  of  Representatives  being  defined  by  the  Constitu 
tion  as  "  the  qualifications  requisite  for  the  most  numer 
ous  branch  of  the  State  Legislature  " — and  the  still  more 
important  fact  that  the  negro  might  be  granted  citizenship 
in  one  State  and  refused  it  in  another,  and  so  give  occa 
sion  for  strife  under  the  clause  of  the  Constitution  which 
affirms,  "  The  citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  in  the  several 
States  ; "  these  close  and  complex  relations  of  the  inhabi 
tants  of  the  several  States  to  each  other  and  to  the  United 
States  rendered  it  especially  desirable  that  citizenship 
should  receive  an  authoritative  and  uniform  definition. 
The  several  States  would  thus  lose  the  power  either  to 
confer  or  withhold  citizenship  in  the  United  States,  or  to 
restrict  the  rights  of  citizens  under  the  Constitution.  The 
definition,  however,  as  given  in  the  Fourteenth  Amend 
ment,  still  leaves  the  question  at  loose  ends  as  far  as 
naturalization  is  concerned.  The  United  States  has  not 
made  its  own  laws  on  this  subject  exclusive  and  final. 

That  it  should  do  this  is  the  more  necessary  as  general 
and  local  elections  are  not  ordered  separately. 

§  5.     Distinct  citizenship  in  distinct  political  organiza 
tions—those  of  the  States  and  that  of  the  United  States— 


Reconstruction  and  Nationality         99 

presented  an  anomalous  condition  of  affairs,  that  called 
for  a  clear  and  final  adjustment.  Otherwise  the  country 
was  left  to  the  confusion  expressed  in  citizens  of  one  State 
being  excluded  from  another  State;  in  citizens  of  States 
exercising  political  rights  in  the  United  States  without 
citizenship  therein;  and  in  citizens  of  the  United  States 
abridged  in  their  rights  by  a  refusal  of  the  States  to 
recognize  them  as  citizens. 

Various  solutions  more  or  less  apt  might  have  been 
given  to  this  problem.  There  might  have  been  a  double 
and  distinct  citizenship  in  the  State  and  in  the  United 
States,  each  on  its  own  terms  and  with  its  own  rights. 
This  arrangement  would  have  constrained  the  General 
Government  to  confine  its  political  and  judicial  privileges 
to  its  own  citizens,  and  to  leave  any  exceptional  rights 
granted  by  one  State  as  contrasted  with  another  State  to 
be  confined  wholly  to  its  own  territory. 

It  might  have  been  left  to  the  States  to  define  citizen 
ship.  In  that  case  we  should  have  had  the  confusion  of 
diverse  definitions,  and  so  have  missed  uniformity  of 
rights  in  the  United  States.  Citizens  of  the  United 
States  would  be  admitted  to  its  privileges  easily  or  wholly 
excluded  according  to  the  policy  of  the  particular  State, 
the  special  door  at  which  they  applied.  The  different 
treatment  of  the  negro  in  the  several  States  rendered  this 
method  especially  obnoxious. 

A  third  device  might  have  been  an  exclusive  definition 
of  citizenship  by  the  General  Government,  carrying  with 
it  the  same  rights  everywhere.  This  would  have  greatly 
limited  the  power  of  the  States,  taking  from  them  a  lead 
ing  expression  of  their  sovereign  character.  This  is  the 
more  manifest  when  we  take  into  consideration  the  in 
stitution  of  slavery.  Under  such  a  settlement  slavery 


ioo  The  Growth  of  Nationality 

would  have  soon  become  either  universal  or  impossible. 
The  diversity  of  social  institutions  between  the  free  States 
and  the  slave  States  was  made  possible  by  separate  prin 
ciples  of  citizenship,  separate  laws  which  they  were  at 
liberty  to  establish  and  enforce.  The  Constitution  in 
volved  more  unity  of  sentiment  and  civil  law  between 
the  States  than  really  existed,  and  than  it  dared  to  es 
tablish,  or  would  have  been  able  to  establish.  In  the 
controversy  between  Massachusetts  and  South  Carolina 
under  the  clause,  "  The  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  of 
the  several  States,"  Massachusetts  was  technically,  con 
stitutionally,  right;  but  if  South  Carolina  had  conceded 
the  claim  she  would  have  lost  her  power  to  shape  her  own 
institutions.  A  community,  a  comity,  of  civil  rights  was 
impossible  between  States  so  diverse  in  their  method  of 
conferring  citizenship  as  were  Massachusetts  and  South 
Carolina.  South  Carolina  could  not  allow  Massachusetts 
to  give  a  negro  all  the  rights  of  a  citizen  within  her  bor 
ders  when  she  herself  had  denied  him  these  rights  for  rea 
sons  which  she  deemed  fundamental  in  her  social  polity. 
Much  the  same  excessive  supposition  of  unity  in  the 
Constitution  is  seen  in  the  manner  in  which  it  settles 
the  elective  franchise.  There  is  no  effort  to  separate 
the  State  elections  and  the  elections  of  the  United  States ; 
they  cannot,  under  the  Constitution,  be  separated.  The 
electors  of  representatives,  of  senators,  and  of  the  presi 
dent  of  the  United  States  are  all  ultimately  defined  by 
the  States.  One  having  all  the  privileges  of  a  citizen  of 
the  United  States  in  one  portion  of  its  territory  might, 
in  another  portion,  be  held  as  a  slave.  The  United 
States  was  thus  robbed  of  all  uniformity,  of  all  policy,  in 
conferring  and  withholding  its  own  privileges.  The  root 


Reconstruction  and  Nationality        101 

relation  out  of  which  the  nation  grows  is  that  of  citizen 
ship,  and  no  people  can  go  far  in  securing  nationality  till 
this  rests  on  a  uniform  and  satisfactory  basis.  At  the 
time  of  the  formation  of  the  Constitution  this  necessity 
was  not  felt;  nor,  if  it  had  been  felt,  would  it  have  been 
possible  to  secure  the  desired  result. 

A  fourth  method  possible  was  a  definition  of  citizen 
ship,  single  and  exclusive,  by  the  United  States  confer 
ring  two  sets  of  rights,  one  in  the  State  and  one  in  the 
United  States.  This  is  what  our  present  system  of  unity, 
with  divided  authority,  demands,  and  what  we  have,  sub 
ject  to  the  modifications  which  the  participation  of  the 
States  in  naturalization  and  the  variety  of  the  conditions 
in  them  of  suffrage,  bring  to  it.  Two  things  are  neces 
sary  to  make  the  method  complete:  the  withdrawal  of 
the  right  to  determine  citizenship  from  the  States,  and 
the  establishment  of  uniform  conditions  of  suffrage  in  the 
States.  The  nation,  and  the  nation  alone,  should  settle 
citizenship  in  its  entire  territory.  As  the  Constitution 
deals  with  citizens,  defines  and  guarantees  their  rights  in 
the  United  States,  it,  and  it  alone,  should  define  who 
they  are.  It  is  fit  also  that  the  nation  and  not  the  State 
should  confer  political  rights  in  the  government  of 
the  United  States.  The  Thirteenth,  Fourteenth,  and 
Fifteenth  Amendments  go  a  long  way  toward  this  result ; 
they  do  not  reach  it.  The  confusion  here  gave  occasion 
to  distinct  development  in  the  States,  and  then  to  the 
bitterness  of  the  slavery  controversy.  There  was  no 
common  ground  of  citizenship,  and  so  of  civil  and  politi 
cal  rights  between  them.  The  North  and  the  South 
reasoned  from  conflicting  social  institutions,  leading  to 
conflicting  rights,  and  neither  could  yield  to  the  other 
without  a  radical  social  revolution. 


102  The  Growth  of  Nationality 

§  6.  The  Fourteenth  Amendment  raised  the  entire 
question  of  the  privileges  and  immunities  which  attach  to 
citizenship  in  the  United  States  and  in  the  States  re 
spectively.  It  would  seem  to  have  been  more  fitting  that 
the  amendment  itself  should  have  explicitly  recognized 
the  distinct  privileges  which  arise  under  the  general 
and  the  local  government,  and  have  given  some  hint  of 
their  nature.  This  was  not  done,  because  the  attention  of 
Congress  and  of  the  country  was  directed  primarily,  not 
to  this  familiar  but  undefined  division  of  functions  be 
tween  the  two  authorities,  but  to  the  protection  which 
the  United  States  must  cast  at  once  over  its  colored 
citizens.  It  felt  the  need  of  removing  this  class  from 
under  the  hitherto  undisputed  control  of  the  States. 
Local  government  was  to  be  abridged  in  this  direction. 
This  was  the  absorbing  idea,  and  served  to  hide  the  more 
remote  consequences  which  might  follow  from  it.  More 
over,  if  the  need  of  drawing  the  distinction  between  these 
rights  had  been  felt  and  attempted,  the  effort  would 
have  involved  great  difficulty.  It  is  impossible  to  give 
a  succinct  and  adequate  statement  of  the  privileges  and 
immunities  we  enjoy  as  citizens  of  the  United  States 
and  those  we  enjoy  as  citizens  of  a  State.  An  inadequate 
separation  might  have  occasioned  more  perplexity  than 
no  separation.  When  a  right  arises  it  is  not  ordinarily 
difficult  to  determine  to  which  of  the  two  categories  it 
belongs.  It  would  be  very  difficult  to  express  in  any  but 
the  most  general  terms  all  the  privileges  and  immunities 
which  may  arise  under  these  two  sources  of  law.  In 
deed  the  distinction  itself  is  not  quite  stable.  The  inten 
tion  of  the  Fourteenth  Amendment  was  to  alter  the 
division,  and  it  did  alter  it.  How  far  it  had  altered  it 
came  before  the  courts  for  determination.  The  taking 


Reconstruction  and  Nationality       103 

up  of  a  new  line  of  activity,  like  that  expressed  in  the 
Interstate  Commerce  Act,  modifies  the  relations  of  the 
citizen  to  the  State  and  the  United  States  in  the  pur 
suit  of  his  rights.  Law  may  frequently  have  that 
effect. 

§  7.     The  entire  question  of  the  rights  which  the  Gen 
eral  Government  had  taken  under  its  own  administration 
by  the  amendments   came   up    in   the   Slaughter-House 
cases,    16    Wallace,   36,    and   received   a  most   fortunate 
solution.       The    Legislature    of    Louisiana  incorporated 
The  Crescent  City  Live-Stock  Landing  and  Slaughter- 
House  Company,  and  gave  it  exclusive  rights  extending 
over  1 1 54  square  miles  for  twenty-five  years.     The  osten 
sible  justification  was  the  police  power  of  the  State.     The 
law  was  attacked  as  greatly  transcending  this  purpose,  as 
creating  a  monopoly,  and  putting  unjust  restrictions  on 
those   engaged  in  this  line  of  business.     The  Supreme 
Court  of  Louisiana  sustained   the   law.     The   case   was 
brought  before  the  Supreme  Court  of  the  United  States, 
and  argued  under  the  Thirteenth  and  Fourteenth  Amend 
ments.     It  was  urged,  under  the  Thirteenth  Amendment, 
that  the  law  created  a  servitude;  and  under  the  Four 
teenth  Amendment,  that  it  abridged  the  privileges  and 
immunities  of  citizens  of  the  United  States.     This  last 
was  the  controlling  consideration.     Justice   Miller  gave 
the  decision  of  the  Court  sustaining  the  law.     The  Court 
was  divided  five  to  four.     The  judgment  rested  not  on  the 
fitness  of  the  law  in  itself,  but  on  the  right  of  the  State 
to  regulate  its  own  concerns.     The  law  lay  within  the 
prerogative  of  the   State.     This  prerogative  the  Four 
teenth  Amendment  did  not  intend  to  take  away,  but  to 
restrict  in  certain   particulars.     The  amendment  must  be 
interpreted  in  view  of  the  special 


104  The  Growth  of  Nationality 

called  it  out  and  the  protection  it  was  intended  to  ex 
tend.  It  was  designed  to  shield  the  colored  race  from 
any  laws  bearing  distinctively  on  them  as  a  people.  It 
was  enacted  in  order  to  secure  an  equality  of  privileges 
between  blacks  and  whites.  It  was  not  the  purpose  of 
the  amendment  to  abridge  the  powers  of  the  States  in 
any  other  particular.  The  incorporating  act  of  the  Legis 
lature  of  Louisiana  made  no  discrimination  between 
negroes  and  other  citizens.  Its  faults,  if  faults  there 
were,  bore  equally  on  all.  The  law  lay  within  the  pro 
vince  of  the  State.  The  Legislature  of  the  State  passed 
the  law,  the  Supreme  Court  of  the  State  approved  the 
law,  and  its  merits  and  demerits  were  strictly  a  local 
affair.  No  right  of  any  person,  as  a  citizen  of  the  United 
States,  was  involved.  The  rights  concerned  were  only 
those  incident  to  citizenship  in  the  State,  and  must  find 
protection,  if  protection  was  needed,  by  the  State.  If 
correction  was  allowed  to  enter  from  the  Supreme  Court 
of  the  United  States,  the  boundaries  between  the  sub 
ordinate  and  the  superior  government  would  be  broken 
down,  and  all  questions  of  constitutional  justice  find 
their  way  to  the  tribunals  of  the  United  States. 

§  8.  Justice  Field  gave  a  dissenting  opinion,  concurred 
in  by  Chief-Justice  Chase  and  by  Justice  Swayne.  Justice 
Bradley,  in  still  further  enforcing  the  opinion  of  Justice 
Field,  laid  down  the  assertion  as  a  leading  position  that 
a  citizen  of  the  United  States  had  the  right  to  prosecute 
any  employment  he  might  choose  to  follow,  subject  to 
the  reasonable  regulation  of  law.  This  proposition  dis 
regards  the  right  of  the  State  to  any  policy  of  its  own,  to 
any  independent  definition  of  rights.  Enforced  by  the 
Supreme  Court  of  the  United  States,  it  would  have  made 
that  tribunal  the  ultimate  judge  of  the  rights  of  citizen- 


Reconstruction  and  Nationality       105 

ship.  There  would  have  been  but  one  citizenship,  that 
of  the  United  States. 

In  keeping  with  this  dissenting  opinion,  it  was  thought 
that  this  Fourteenth  Amendment  opened  the  door  for 
many  questions  which  could  now  be  laid  before  the 
Supreme  Court  of  the  United  States.  Thus  Mrs.  Brad- 
well  endeavored  to  secure  the  right  to  practise  law  in 
Illinois  regardless  of  the  decisions  of  the  courts  of  that 
State:  Bradwell  vs.  Illinois,  16  Wallace,  130.  The  refusal 
of  the  State  was  regarded  as  abridging  the  privileges  and 
immunities  of  a  citizen  of  the  United  States. 

In  1891,  Judge  Hammond,  in  the  Circuit  Court  of 
Tennessee,  dismissed  the  complaint  of  a  Seventh-day 
Baptist  who  had  been  imprisoned  under  the  laws  of  Ten 
nessee  for  plowing  on  Sunday. 

On  the  other  hand,  a  statute  denying  blacks  the  right 
to  sit  on  a  jury,  was  pronounced  unconstitutional — a  vio 
lation  of  the  Fourteenth  Amendment:  Strander  vs.  West 
Virginia,  100  U.  S.,  303. 

It  is  not  easy  to  overestimate  the  importance  of  the 
decision  in  the  Slaughter- House  cases  as  preserving  a 
peculiar  and  most  valuable  feature  in  our  government. 
It  goes  far  to  win  for  Justice  Miller  a  position  only  second 
to  that  of  Marshall  in  the  apprehension  of  the  true  nature 
of  our  Constitution,  and  of  the  office  of  the  Supreme 
Court  under  it.  It  is  surprising  that  Chief-Justice  Chase, 
who  had  stood  so  staunchly  for  the  inviolable  character  of 
the  State,  and  Justice  Field,  who  expressed  to  the  last 
his  unqualified  dissent  from  the  right  of  the  General 
Government  to  issue  legal-tender  notes,  should  have  both 
favored  the  complete  surrender  of  the  State  to  the  United 
States  in  the  terms  of  its  internal  policy.  Such  an  in 
consistency  of  opinion  illustrates  the  fact  that  no  techni- 


io6  The  Growth  of  Nationality 

cal  acumen  can  make  a  great  judge,  but  may  often  stand 
in  the  way  of  such  a  result.  A  clear  conception  of  the 
nature  of  the  government,  of  its  true  line  of  development, 
and  of  the  ultimate  bearing  of  any  given  question  on 
these  two  points  is  of  far  more  moment  than  an  ingenious 
unfolding  of  legal  ideas  and  constitutional  language. 

The  decision  of  the  Court  and  the  opinion  of  Justice 
Miller  righted  the  vessel  at  once.  The  attention  was  re 
stored  to  the  true  constitutional  balance,  which  it  is  now 
comparatively  easy  to  maintain.  The  signal  failure  of 
the  States  in  one  instance  to  deal  justly  with  the  primi 
tive  rights  of  citizens  was  not  allowed  to  wholly  sweep 
away  their  jurisdiction  in  this  class  of  cases.  Especially 
were  the  police  powers  of  the  State  to  be  carefully 
guarded:  Barbers.  Connolly,  113  U.  S.,  27;  Hennington 
vs.  Georgia,  163  U.  5.,  299. 

§  9.  An  act  of  March  I,  1875,  aimed  to  secure  equal 
accommodations  in  cars,  inns,  public  places,  for  blacks 
and  whites.  It  was  held  by  the  Supreme  Court  to  be 
unconstitutional  on  the  ground  that  Congress  had  no 
right  to  take  the  initiative;  to  invade,  by  an  independent 
act,  the  realm  of  the  State.  Its  right  is  secondary  to 
that  of  the  State,  and  lies  in  correction  of  any  unequal 
laws  or  regulations  which  may  be  made  by  the  State. 
The  whole  field  of  safety  and  good  order  rests  with  the 
State,  that  of  equality  between  special  classes  of  citizens 
rests  with  the  General  Government.  The  General  Gov 
ernment  cannot  correct  deficiencies  in  the  legislation  of 
the  State,  but  can  restrain  legislation  which  denies  to  any 
person  the  equal  protection  of  the  law  when  that  inequal 
ity  rests  on  race  or  color  or  previous  condition  of  servi 
tude:  Civil  Rights  cases,  109  U.  S.,  3. 

For  a  like  reason  the  memorial  of  the  Legislature  of 


Reconstruction  and  Nationality        107 

Massachusetts,  in  1893,  addressed  to  Congress  in  refer 
ence  to  establishing  uniform  rules  regulating  the  employ 
ment  of  women,  had  no  constitutional  standing.  We 
cannot  possess  the  advantages  of  that  extended  local 
government  which  falls  to  the  States  without  suffering  its 
disadvantages.  Much  defective,  unwise,  and  undesirably 
diversified  legislation  must  be  endured  as  the  product  of 
ignorance  or  caprice  or  neglect  in  the  several  States.  We 
must  more  frequently  fight  the  battles  of  reform  in  each 
of  these  civil  communities,  subject  to  the  losses  and  gains 
of  each  locality,  and  to  an  endless  repetition  of  labor. 
We  may  start  a  reform  in  a  single  State  which  could  make 
no  progress  in  the  nation ;  we  may  find  a  reform  which 
commands  national  attention  perplexed  and  delayed  by 
the  resistance  of  a  single  State. 

The  Civil  War  and  the  reconstruction  which  strove  to 
heal  its  wounds  not  only  swept  away  the  grounds  of  the 
deepest  social  division  in  the  nation,  they  greatly 
strengthened  the  General  Government  by  the  immense 
activity  and  expenditure  they  involved.  The  previous 
want  of  balance  between  the  States  and  the  United  States 
was  more  than  corrected,  and  the  danger  became  that  no 
State  or  group  of  States  would  be  able  to  hold  its  own 
against  the  encroachment  of  the  national  life. 


CHAPTER  V 

Strife  between  Departments 

§  i.  THE  third  struggle  in  the  harmonious  develop 
ment  of  the  national  life,  that  between  departments,  has 
been  far  less  serious  than  either  of  the  two  contentions 
that  have  now  been  presented.  The  Constitution  of  the 
United  States  was  framed  under  the  ruling  idea  of  a  care 
ful  separation  of  the  three  leading  departments,  legisla 
tive,  executive,  and  judicial,  from  each  other.  It  was 
expected  that  they  would  mutually  restrain,  as  well  as 
supplement  and  support,  each  other.  This  expectation 
has  not  been  disappointed.  The  friction  between  the 
departments  and  their  trespasses  on  each  other  have  never 
been  serious,  and  have  soon  passed  away.  The  division 
between  departments  has  helped  to  check  the  centraliza 
tion  of  power.  The  interpretation  of  law  devolves  on  a 
judicial  body,  not  only  distinct  from  the  legislative  body 
that  enacts  law,  but  very  different  from  it  in  its  traditions 
and  immediate  purposes.  The  legislative  department  is 
the  one  most  able  to  encroach,  and  most  likely  to  en 
croach,  on  other  departments.  The  direct  representative 
force  of  the  legislature,  the  confidence  created  by  num 
bers,  by  counsel,  and  by  discussion;  the  large  oversight 
of  collective  interests,  the  predominant  purposes,  the 
power  of  impeachment,  which  fall  to  it ;  the  interest  which 
the  people  take  in  its  proceedings,  all  give  it  a  weight  not 
easily  resisted  when  acting  in  concurrence  with  popular 

108 


Strife  between  Departments  109 

sentiment.  The  judiciary,  on  the  other  hand,  constitutes 
a  much  less  conspicuous  body,  one  with  less  command  of 
public  sympathy,  and  one  not  infrequently  called  on  to 
modify,  or  wholly  arrest,  a  law  which  the  people  have 
forced  through  the  legislature.  The  occasions  of  collision 
are  relatively  frequent  between  these  two  departments, 
and  are  often  accompanied,  on  the  part  of  the  legislature, 
with  the  sense  of  being  baffled.  A  sound  judiciary  is  at 
once  the  greatest  safeguard  of  a  free  government,  and  its 
most  continuous  constructive  agent.  The  harmonious 
development  of  needful  powers,  as  well  as  the  arrest  of 
dangerous  powers,  is  largely  the  work  of  the  judiciary. 
The  Supreme  Court  of  the  United  States  has  fulfilled 
this  double  function  with  much  energy  and  great  free 
dom  from  mistake.  The  ultimate  judgment  of  the  people, 
however,  has  had  occasion  at  times,  as  in  the  Dred  Scott 
decision,  to  render  void  its  errors. 

§  2.  Under  the  lead  of  Jefferson  and  Randolph,  who 
were  reluctant  to  accept  a  strong  government,  an  attack 
was  early  made  on  the  Supreme  Court.  The  impeach 
ment  of  Justice  Chase,  which  very  fortunately  failed,  was 
an  effort  to  hold  the  judges  in  check.  Justice  Chase  was 
a  man  of  ability,  decision,  and  integrity.  He  had  not 
been  as  prudent  in  taking  part  in  politics  as  he  should 
have  been,  and  as  the  judges  of  the  United  States  have 
uniformly  been.  Yet  his  faults  were  wholly  of  a  venial 
character,  attributable  to  an  irascible  temper.  They  con 
stituted  no  sufficient  ground  of  impeachment.  The  failure 
of  the  attack  increased  the  strength  and  security  of  the 
Court. 

The  reduction  of  the  number  of  judges  when  the  Re 
publican  party  first  came  into  power  was  much  more 
excusable.  The  Federalists,  anticipating  defeat,  as  one 


no  The  Growth  of  Nationality 

of  their  last  acts  gave  a  sudden  expansion  to  the  courts  of 
the  United  States,  and  filled  the  sixteen  judgeships  so 
established  with  their  own  adherents.  The  movement, 
though  prompted  in  part  by  an  undue  fear  of  the  Repub 
licans,  was  precipitate  and  partisan.  A  natural  sequence 
was  a  repeal  of  the  act  by  which  the  new  courts  were 
established.  "  As  they  could  not  remove  the  judge 
from  the  bench  they  removed  the  bench  from  the 
judge." 

§  3.  The  most  critical  period  in  the  relation  of  the 
legislative  and  judicial  departments  was  that  of  the  Civil 
War  and  of  reconstruction.  Each  branch  of  the  Govern 
ment  was  in  possession  of  mature  strength,  while  there 
was  a  wide  divergence  in  their  immediate  responsibilities 
and  in  their  outlook  on  methods.  Diversity  of  opinion 
was  unavoidable.  Congress  was  called  on  to  deal  at  once, 
in  an  effective  way,  with  the  most  critical,  obscure,  and 
urgent  circumstances.  There  was  almost  nothing  in  the 
history  of  the  nation  to  guide  its  legislature.  Congress 
was  compelled  to  accept  responsibilities  and  assume  pow 
ers  for  which  there  were  no  precedents,  and  of  which 
there  had  been  no  forecast.  If  Congress  made  mistakes, 
it  must  correct  them  rather  by  pushing  forward  than  by 
receding  from  them.  Energy  and  decision  were  the 
cardinal  virtues.  Hesitancy  was  the  worst  of  errors. 

To  the  judiciary,  on  the  other  hand,  fell  the  difficult 
task  of  reviewing  the  action  of  the  legislative  body,  fre 
quently  long  after  the  exigency  had  passed  by,  when  the 
necessities  of  the  case  no  longer  suffered  exaggeration, 
and  the  right  lines  of  action  had  been  revealed  by  the 
progress  of  events.  It  was  their  office  to  see  not  so  much 
that  the  immediate  task  was  performed,  as  that  the  Con 
stitution  suffered  no  strain.  The  judicial  mind,  as 


Strife  between  Departments  in 

contrasted  with  the  legislative  mind,  is  also  more  firmly 
bound  to  recognized  methods  and  feels  less  keenly  the 
circumstances  which  seem  to  render  them  inadequate. 
It  is  not  surprising,  therefore,  that  a  rift  should  begin  to 
appear  between  the  two  departments.  The  marvel  is 
rather  the  degree  in  which  harmony  was  preserved. 

This  division  is  well  illustrated  in  the  Legal-Tender 
Cases.  Congress,  in  issuing  Treasury  notes  and  making 
them  legal  tender,  acted  according  to  its  best  judgment, 
under  circumstances  which  admitted  of  no  delay  and  amid 
an  alarm  and  confusion  of  opinion  that  themselves  greatly 
enhanced  the  danger.  Whatever  wiser  policy  might  have 
been  pursued,  the  policy  adopted  was  so  far  successful 
that  funds  were  provided,  the  immediate  exigency  was 
met,  and  the  nation  gained  the  time  and  courage  which 
led  to  success  and  enabled  it  later  to  see  and  feel  the 
costly  character  of  the  way  by  which  it  had  come.  If  the 
question  of  the  constitutionality  of  the  issue  had  offered 
itself  to  the  Supreme  Court  as  a  perfectly  open  one;  if, 
by  the  action  of  Congress,  interests  of  the  utmost  moment 
had  not  already  been  involved ;  if  a  change  of  view  had 
not  been  ready  to  be  followed  by  much  confusion  and  in 
justice, — then,  doubtless,  the  Supreme  Court  would  have 
regarded  the  issue  of  the  greenbacks  as  an  unwarrantable 
extension  of  the  power  granted  to  Congress  by  the  Con 
stitution.  The  question  actually  before  the  Court  was 
not  one  that  could  be  decided  on  abstract  grounds  simply. 
A  most  important,  extended,  and  complex  series  of  facts, 
largely  unchangeable  in  their  results,  were  involved  in 
the  decision.  The  injuries  that  had  accrued  were  in  a 
high  degree  incapable  of  correction,  and  the  effort  to  cor 
rect  them  would  add  to  them  a  new  series  of  wrongs.  A 
court  that  should  overlook  or  disregard  such  relations  as 


ii2  The  Growth  of  Nationality 

these  would  be  unworthy  of  the  watch  and  ward  of  the 
great  interests  committed  to  it  and  of  the  national  trust 
reposed  in  it.  The  time  for  a  purely  critical  view  had 
gone  by.  It  was  now  necessary  to  look  upon  the  ques 
tion  of  constitutionality  as  part  of  the  broader  question 
of  national  life.  The  Court  slowly  and  reluctantly  ac 
cepted  the  situation,  till,  in  the  final  decision,  no  one  but 
Justice  Field  adhered  to  the  more  formally  correct,  but 
far  less  practical,  view.  The  Court  wisely  allowed  itself 
to  follow  in  the  steps  of  Congress,  on  whom  the  pressure 
had  rested,  and  whose  conclusion,  wise  or  unwise,  de 
manded  the  utmost  respect.  This  concessive  opinion, 
well  presented  by  Justice  Miller,  most  fortunately  pre 
vailed  in  these  trying  experiences,  when  errors  were  in 
evitable,  and  when  critical  discussion  and  unconcessive 
correction  would  have  enhanced  the  danger. 

§  4.  The  war  gave  occasion  for  an  extension  of  execu 
tive  and  military  authority  at  some  new  and  dangerous 
points.  The  first  collision  with  the  courts  arose  in  the 
case  of  Merryman,  arrested  May  21,  1861,  in  the  State  of 
Maryland  under  military  authority.  The  writ  issued  by 
Chief-Justice  Taney  was  disregarded,  while  he  denied  the 
right  of  the  President  to  suspend  the  writ  of  habeas 
corpus.1  The  conflict  occasioned  perhaps  less  anxiety 
because  Taney  was  just  at  the  close  of  his  services,  and 
was  regarded  as  one  who  had  prejudged  the  main  issue. 
This  disagreement  was  trifling  compared  with  that  which 
had  already  occurred  under  the  irritation  of  the  fugitive 
slave  law.  The  Supreme  Court  of  Wisconsin  had  taken 
a  prisoner  from  the  custody  of  an  officer  of  the  United 
States,  justifying  the  action  by  declaring  the  law  under 
which  he  had  suffered  arrest  unconstitutional.  This  was 

1  Miller  on  the  Constitution  of  the  United  States,  p.  349. 


Strife  between  Departments  113 

a  complete  inversion  of  the  relation  of  the  two  powers  to 
each  other;  Ableman  vs.  Booth,  21  Howard,  506. 

The  case  which  brought  the  question  to  an  issue  of  the 
power  of  the  President  and  of  Congress  to  suspend  the 
writ  of  habeas  corpus,  and  to  order  a  trial  by  a  military 
commission,  was  that  of  Milligan,  4  Wallace,  2.  Milligan 
was  arrested  in  Indiana,  a  State  not  in  rebellion,  not  in 
vaded  ;  a  State  in  which  the  courts  of  the  United  States 
were  in  peaceable  possession  of  their  usual  jurisdiction. 
Milligan  stood  in  no  connection  with  the  military  or  the 
naval  service.  He  was  accused  of  conspiracy,  tried  by  a 
military  commission,  and  sentenced  to  be  hung.  The 
case  was  brought  before  the  Supreme  Court  of  the  United 
States.  The  decision,  five  to  four,  was  that  a  military 
commission,  under  the  authority  of  the  President,  could 
not  try,  commit,  or  sentence  a  citizen  who  was  neither  a 
resident  of  a  rebellious  State,  nor  a  prisoner  of  war,  nor 
in  the  military  service  of  the  United  States,  in  a  State 
not  engaged  in  rebellion,  nor  invaded,  and  in  which  the 
Federal  courts  were  open.  It  was  further  affirmed,  that 
Congress  could  not  confer  on  the  President  the  power  in 
volved  in  this  procedure.  It  was  this  last  assertion  which 
drew  forth  dissent  from  Chase,  Wayne,  Swayne,  and 
Miller. 

The  question  turned  chiefly  on  the  right  of  trial  by 
jury,  defined  in  the  Fifth  Amendment :  "  No  person  shall 
be  held  to  answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  actual  service  in  time  of  war  or  public 
danger."  All  agreed  that  in  the  case  before  the  Court, 
Congress  had  conferred  no  right  for  the  trial  of  a  citizen  by 
military  commission.  The  minority  were  not  willing  to 


ii4  The  Growth  of  Nationality 

deny  the  right  of  Congress,  as  a  universal  proposition, 
to  authorize  such  a  procedure.  Congress  had  the  power 
to  declare  war,  to  raise  and  support  armies,  and  to  make 
rules  for  their  regulation.  Both  forms  of  power,  military 
and  civil,  were  entrusted  to  Congress,  and  the  minority 
looked  on  the  Fifth  Amendment,  not  as  a  final  and  fast 
definition  of  the  lines  to  be  drawn  between  them,  but  as 
maintaining  the  civil  rights  of  the  citizen,  except  so  far 
as  the  military  power,  pursuing  its  own  legitimate  aim, 
intervened.  Congress  had  a  right,  in  the  first  instance, 
to  determine  whether  the  circumstances  were  such  as  to 
require  an  extension  of  military  authority.  The  fact  of 
the  presence  of  the  civil  courts  might  not,  in  all  cases, 
sufficiently  define  the  character  of  the  exigency.  There 
was  a  legitimacy  which  belonged  to  military  authority 
equally  with  civil  authority,  when  the  safety  of  the  nation 
called  for  its  exercise.  The  suspension  of  the  writ  of 
habeas  corpus  looked  to  a  temporary  substitution  of  mili 
tary  for  civil  tribunals.  The  writ  was  suspended  in  the 
presence  of  the  courts.  That  was  the  very  intent  of 
suspension. 

The  doctrine  outlined  by  the  events  of  the  war,  and  in 
volved  in  the  opinion  of  the  four  dissenting  judges,  was 
that  the  President  might  suspend,  at  his  discretion,  the 
writ  of  habeas  corpus,  his  action  being  subject  to  the  con 
firmation  of  Congress;  that  Congress,  at  its  discretion, 
might  extend  or  withhold  confirmation;  that  the  courts 
would  not  intervene  when  the  military  exigency  was  ap 
parent.  This  differs  from  the  English  doctrine  in  not 
conceding  absolute  liberty  to  the  legislative  body.  The 
citizen  remained  under  the  protection  of  the  courts. 

§  5.  A  conflict  of  opinion  as  to  reconstruction  was 
evaded  in  the  case  of  McCardle,  6  Wallace,  318;  7  Wai- 


Strife  between  Departments  115 

lace,  506.  McCardle  had  been  arrested  by  military 
authority  for  interfering  with  reconstruction.  He  was 
brought  before  the  Circuit  Court  of  Mississippi  and  the 
case  carried  thence  to  the  Supreme  Court.  Congress  held 
tenaciously  to  its  right  of  a  free  hand  in  reconstruction. 
The  Constitution  had  no  instructions  for  such  circum 
stances,  and  could  not  come  into  operation  in  reference 
to  the  rebellious  States  till  they  were  restored  to  their 
normal  relations  under  it.  The  method  of  the  restora 
tion  was  simply  a  question  of  political  wisdom.  Another 
opinion  was  more  or  less  prevalent  in  the  Supreme  Court. 
Congress  was  unwilling  that  it  should  gain  expression. 
Before  the  case  came  up  for  decision  Congress  repealed 
the  law  under  which  the  case  was  carried  to  the  higher 
court.  Thus  the  occasion  of  a  collision  was  avoided. 

§  6.  A  second  conflict  of  departments  has  arisen  be 
tween  the  President  and  Congress.  It  was  apprehended 
at  the  formation  of  the  Constitution  that  the  power  of 
the  President  would  prove  excessive.  The  facts  have 
not  confirmed  this  anticipation.  There  has  been  but 
little  collision  between  the  two  departments,  and  Con 
gress,  in  the  most  critical  of  these  cases,  easily  held  the 
field. 

Papers,  in  the  case  of  Jay's  treaty,  were  refused  by 
President  Washington  to  the  House  of  Representatives 
as  having,  in  the  premises,  no  function  of  criticism  or 
right  of  action.  The  House  has  claimed  the  right,  as  in 
the  case  of  Alaska,  to  act  its  own  discretion  in  the  case 
of  treaties  when  these  treaties  could  not  be  given  effect 
without  legislation.  Neither  the  Constitution  nor  the 
circumstances  involved  pronounce  with  perfect  distinct 
ness  on  this  claim.  It  can  hardly  be  expected  that  the 
House  of  Representatives  would  be  willing,  or  hardly 


n6  The  Growth  of  Nationality 

claimed  that  it  should  be  willing,  to  be  a  merely  mechani 
cal  instrument  in  making  appropriations  to  carry  out  a 
policy  placed  beyond  its  consideration.  Its  sovereignty 
in  the  ordering  of  expenditure  is  of  the  same  primary  and 
independent  character  as  that  of  the  President  and  Senate 
in  reference  to  treaties. 

Madison  sent  Gallatin  abroad  to  negotiate  a  treaty, 
while  he  was  Secretary  of  the  Treasury.  The  Senate 
objected  in  vain.  The  Senate  passed  a  resolution  censur 
ing  President  Jackson  for  removing  the  funds  of  the 
United  States  from  the  Bank  of  the  United  States. 
4  The  President,  in  the  late  executive  proceedings  in 
relation  to  the  public  revenue,  assumed  upon  himself 
authority  and  power  not  conferred  by  the  Constitution 
and  laws,  but  in  derogation  of  both."  Jackson  sent  a 
protest,  and  demanded  that  it  should  be  entered  on  the 
journal.  The  Senate  refused,  and  reaffirmed  the  resolu 
tion.  Jackson  was  so  thoroughly  supported  by  the  people 
that  the  Senate  was  induced,  at  a  later  period,  to  expunge 
the  resolution. 

§  7.  The  only  conflict  of  serious  import  between  the 
executive  and  the  legislative  department  was  that  which 
sprang  up  in  connection  with  Andrew  Johnson.  Its  les 
sons  are  very  plain.  Congress  is  not  likely  to  lack 
strength,  but  is  in  danger  rather  of  an  excessive  use  of 
power.  Andrew  Johnson  was  a  man  of  ability  and 
patriotism,  but  opinionated  and  obstinate.  He  had  en 
dured  a  good  deal  for  the  Union,  and,  as  military  gover 
nor  of  Tennessee,  had  rendered  valuable  service.  He  was 
rewarded  by  the  position  of  Vice-President.  When  he 
became  President  by  the  assassination  of  Lincoln,  it  was 
feared  that  he  would  show  a  vindictive  temper  toward 
the  South.  He  shared  the  extreme  opinion  as  to  the  in- 


Strife  between  Departments  117 

destructible  character  of  the  States  and  their  right  to 
resume  their  old  position  in  the  Union.  Lincoln  sym 
pathized  with  this  view,  and  notwithstanding  his  adroit 
and  concessive  methods,  might,  with  his  immense  influ 
ence,  have  been  a  far  more  formidable  advocate  of  these 
opinions  than  was  Johnson.  Congress,  on  the  other  hand, 
with  an  overwhelming  Republican  majority,  having 
carried  the  war  to  a  successful  issue,  and  being  warmly 
seconded  by  the  people,  was  not  disposed,  in  reconstruc 
tion,  to  lose  any  material  advantage  of  victory,  or  to 
leave  in  the  soil  the  seeds  of  further  dissension.  Con 
gress  was  the  more  anxious  as  to  results,  because  the 
Supreme  Court  was  thought  to  share,  at  least  in  part,  the 
more  conservative  opinion  as  to  the  rights  of  the  States 
in  rebellion. 

Johnson  was  disposed  to  assert  his  power  in  reconstruc 
tion,  and  to  use  it  freely.  He  vetoed  in  succession  im 
portant  reconstruction  measures,  measures  which  in  turn 
were  passed  over  his  veto.  He  took  no  pains  to  conceal 
his  opinion  of  the  attitude  taken  by  Congress.  The  chief 
attack,  however,  was  made  by  Congress,  and  pursued, 
from  beginning  to  end,  on  very  debatable  ground.  Stan- 
ton,  as  Secretary  of  War,  was  very  distasteful  to  President 
Johnson,  and  was  in  close  sympathy  with  Congress. 
Congress  was  unwilling  that  the  President  should  sur 
round  himself  with  advisers  favorable  to  his  own  opinions. 
A  bill  prescribing  the  tenure  of  office  of  appointees  of  the 
President  was  passed  March  2,  1867.  Also,  at  the  same 
date,  a  requisition  was  appended  to  the  appropriation 
bill  requiring  that  all  orders  directed  by  the  President  to 
inferior  officers  of  the  army  should  be  transmitted  through 
the  general.  The  first  of  these  measures,  the  tenure  of 
office  bill,  was  the  chief  feature  of  the  strife  which  fol- 


n8  The  Growth  of  Nationality 

lowed,  and  the  occasion  of  the  impeachment.  Against 
the  more  direct  rendering  of  the  Constitution,  and  against 
the  practice  of  the  government,  settled  during  the  ad 
ministration  of  Washington,  this  bill  made  the  consent 
of  the  Senate  essential  for  the  removal,  as  well  as  for  the 
appointment,  of  those  officers  who  held  office  by  the  joint 
authority  of  the  President  and  the  Senate.  President 
Johnson  regarded  this  action  as  a  trespass  on  his  consti 
tutional  rights,  and  entered  on  a  line  of  action  fitted  to 
bring  the  question  before  the  Supreme  Court.  This  was 
urged  in  his  defence  as  a  most  fundamental  and  undeni 
able  right, — the  right  of  appeal  to  the  constitutional 
tribunal  on  doubtful  constitutional  questions.  Congress 
was  put  in  the  position  of  resisting  a  reference  to  the 
Supreme  Court  in  a  case  arising  under  its  own  alleged 
trespass,  and  of  insisting  that  its  own  claims  and  the 
claims  of  the  President  should  be  decided  by  an  im 
peachment,  instituted  and  determined  by  itself.  A 
position  so  arbitrary  subjected  the  entire  movement,  not 
withstanding  the  soundness  of  the  policy  which  underlay 
it,  to  grave  censure. 

On  August  5,  1867,  Johnson  requested  Stanton  to 
resign  as  Secretary  of  War.  Stanton  declined  to  do  so. 
He  was  removed,  and  General  Grant  was  appointed  in 
his  place.  Congress  refused  to  ratify  the  appointment. 
Grant  resigned,  and  Stanton  resumed  his  duties.  The 
President  sent  him,  February  21,  1868,  a  message  of  dis 
missal,  and  appointed  Lorenzo  Thomas  in  his  place.  As 
a  matter  of  fact,  the  transaction  was  purely  formal. 
Stanton  remained  in  the  discharge  of  his  duties.  The 
claims  of  the  two  were  simply  put  in  a  form  in  which  they 
could  be  brought  before  the  Supreme  Court. 

The  tenure  of  office  bill  had  made  a  dismissal  by  the 


Strife  between  Departments  119 

President  contrary  to  its  provisions,  a  misdemeanor.  On 
this  ground  chiefly,  the  House  of  Representatives  pro 
ceeded  to  impeach  President  Johnson.  All  other  charges 
against  him,  such  as  the  disrespectful  speeches  made  by 
him,  were  of  little  weight.  Not  only  was  the  attitude  of 
the  President  to  the  Constitution  more  respectful  of  its 
claims  than  that  of  Congress,  a  technical  embarrassment 
stood  in  the  way  of  impeachment,  even  under  the  tenure 
of  office  bill  itself.  The  members  of  the  cabinet  were  to 
hold  office  during  the  term  of  the  President  by  whom 
they  were  appointed,  and  one  month  thereafter,  subject 
to  removal  with  the  advice  and  consent  of  the  Senate. 
Stanton  had  been  appointed  by  President  Lincoln,  and 
had  held  office  for  more  than  one  month  after  his  death, 
and  did  not,  therefore,  come  under  the  special  clause  of 
the  bill  defining  the  relation  of  secretaries  to  the  Presi 
dent,  and  the  method  of  removal.  Congress  was  at  dis 
advantage  both  on  substantial  and  on  formal  grounds. 

The  fact  that  Congress,  when  the  exigency  had  passed 
by,  repealed  the  tenure  of  office  bill,  goes  to  show  that  it 
was  regarded  as  a  measure  disturbing  the  equilibrium  of 
the  executive  and  legislative  departments,  and  an  un 
reasonable  encroachment  on  the  authority  of  the  Presi 
dent.  There  is  no  power  bestowed  by  the  Constitution 
more  critical  in  its  use  than  that  of  impeachment,  and 
especially  the  impeachment  of  the  President.  Many 
political  interests  and  passions  are  sure  to  enter  into  the 
effort  to  remove  so  high  an  officer,  and  one  so  closely  as 
sociated  with  Congress.  The  procedure  is  fortunate  if  it 
does  not  wholly  lose  its  judicial  character.  It  is  peril 
ously  near  to  a  return  to  a  bill  of  attainder  and  to  the  im 
peachments  which  characterized  the  earlier  struggles  for 
liberty  in  England.  It  is  fortunate  that  so  many  of  the 


120  The  Growth  of  Nationality 

impeachments  ordered  and  prosecuted  by  Congress  have 
failed. 

In  the  case  of  President  Johnson,  the  failure  of  the 
prosecution  was  especially  desirable.  Mistaken  as  were 
his  methods,  they  were  pursued  conscientiously  and 
within  the  limits  of  the  Constitution.  The  remaining 
period  of  his  service  was  brief,  and  no  important  diffi 
culty  attended  on  his  continuance  in  office.  Much  of  the 
same  exasperation  and  bitterness  of  party  which  led  the 
Whigs  to  attempt  an  impeachment  of  President  Tyler 
was  called  out  in  this  conflict.  The  fact  that  Benjamin 
F.  Butler  was  among  the  managers  of  the  impeachment 
is  an  indication  of  the  temper  in  which  it  was  conducted. 
The  opinion  filed  by  such  a  Senator  as  Charles  Sumner 
shows  how  thoroughly,  and  how  unreasonably,  President 
Johnson  had  become  identified  in  the  minds  of  Senators 
with  the  protracted  and  bitter  opposition  they  had  met 
with  on  the  part  of  defenders  of  slavery,  and  the  strength 
of  their  determination  to  tolerate  no  resistance  to  a  satis 
factory  settlement  of  the  question  of  reconstruction. 
Their  attitude  was  political,  not  judicial.  The  vote  for 
conviction  stood  thirty-five  to  nineteen.  It  failed  by  a 
single  vote.  We  owe  not  a  little  to  those  seven  Repub 
lican  Senators  who  broke  away  from  the  strongest  party 
influence,  and  with  cool,  just  conviction,  cast  their  votes 
against  a  result  so  undesirable  in  itself  and  so  dangerous 
as  a  precedent. 

§  8.  Another  point  of  disagreement  between  President 
Johnson  and  Congress  was  the  exercise  of  the  pardoning 
power.  This  power  is  granted  fully  and  exclusively  in 
the  Constitution  to  the  President.  '  He  shall  have  power 
to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  case  of  impeachment."  Ordi- 


Strife  between  Departments  121 

narily  it  is  an  important  power,  but  hardly  one  of  a  critical 
and  national  character.  On  the  occasion,  however,  of  a 
wide-spread  rebellion,  its  exercise,  as  a  means  of  pacifica 
tion,  and  of  establishing  new  conditions  of  union,  became 
an  action  of  wide  sweep  and  utmost  moment.  It  could 
be  so  used  as  to  baffle  legislative  measures. 

There  is  one  element  of  doubt  in  rendering  the  Con 
stitution.  As  no  limitation  is  put  upon  the  power  in  the 
Constitution,  as  the  English  constitution  allows  its  exer 
cise  to  precede  trial,  as  the  power  to  pardon  after  convic 
tion  would  seem  to  imply  the  power  to  pardon  previous 
to  conviction,  the  rendering  of  the  power  by  the  President 
and  by  the  Supreme  Court  has  been,  that  the  President 
might  pardon  offences  in  any  stage  of  wrong-doing.  In 
deed,  as  the  political  penalties  of  rebellion  are  imposed, 
for  the  most  part,  without  trial,  the  narrower  interpreta 
tion  of  the  law  would  give  the  President  little  or  no 
function  in  connection  with  them. 

Congress  passed  an  act,  July  17,  1862,  authorizing  an 
extension  of  pardons  by  the  President  in  connection  with 
the  rebellion.  December  8,  1863,  President  Lincoln 
issued  a  proclamation  granting  pardons.  He  referred  in 
it  to  the  act  of  July,  but  also  affirmed  the  independent 
right  of  the  President  to  grant  or  withhold  pardons  at  his 
discretion.  On  May  29,  1865,  President  Johnson  issued 
a  proclamation  of  amnesty  and  pardon,  excluding  four 
teen  classes.  Congress  repealed  the  act  of  1862,  July 
21,  1867.  On  September  7,  1867,  the  President  issued 
a  second  proclamation,  excluding  three  classes;  and 
again  a  third  proclamation,  July  4,  1868,  with  still  fewer 
exceptions.  On  December  25,  1868,  he  proclaimed  a 
general  pardon.  July  12,  1870,  Congress  annexed  to  an 
appropriation  bill  an  act  ordering  that  no  pardon  granted 


122  The  Growth  of  Nationality 

by  the  President  should  be  pleaded  in  the  Court  of  Claims, 
and  that  no  appeal  should  be  had  to  the  Supreme  Court 
in  any  case  of  any  claim  based  on  such  a  pardon. 

The  Supreme  Court,  13  Wallace,  128,  affirmed  the  law 
to  be  unconstitutional,  as  being  in  violation  of  the  consti 
tutional  rights,  both  of  the  President  and  of  the  Supreme 
Court.  It  had  been  affirmed  by  the  Court,  January  14, 
1867,  that  Congress  could  neither  limit  the  effect  of  the 
President's  pardons,  nor  exclude  from  them  any  class  of 
offenders;  13  Wallace,  141. 

The  power  of  the  President  is  at  once  great  and  small. 
When  circumstances  favor  its  use,  his  influence  is  very 
extended  ;  but  when  he  is  in  disagreement  with  the  legis 
lative  department  he  cannot  easily  withstand  it.  This  is 
seen  in  the  cases  of  Andrew  Jackson  and  of  Andrew  John 
son.  Jackson,  by  virtue  of  great  popularity,  ultimately 
gained  the  legislature  and  so  won  his  battle  with  the 
Senate.  On  the  other  hand  the  policy  that  Johnson 
favored  gave  way  at  all  points  before  the  hostility  of 
Congress,  and  he  himself  barely  escaped  expulsion  from 
his  high  office.  In  the  case  of  impeachment,  Congress  is 
both  accuser  and  judge. 

§  9.  The  separation  between  the  executive  and  the 
legislative  departments  results,  in  the  case  of  serious  and 
protracted  contention  between  them,  in  the  restriction  of 
the  former.  The  legislature,  as  the  history  of  England 
abundantly  shows,  has  the  advantage  in  any  severe 
struggle.  Parliament  gradually  wore  down  the  authority 
of  the  king,  and  finally  displaced  it  by  that  of  the  cabi 
net,  responsible  to  itself.  The  fact  that  Congress  controls 
expenditure,  that  it  is  in  much  wider  and  more  immediate 
connection  with  the  people  than  is  the  President,  and  that 
any  trespass  it  may  commit  upon  his  authority  admits  of 


Strife  between  Departments  123 

very  slow  correction,  makes  any  conflict  between  them 
very  unequal.  The  executive  has  found  occasion  to  use 
the  veto  power  freely,  and  it  has  proved  but  a  limited 
protection.  If  Congress  is  under  the  control  of  the  ad 
verse  party,  or  if  the  President  fails  to  win  the  hearty 
support  of  his  own  party,  he  is  easily  vexed,  thwarted, 
and  maligned  in  his  administration.  The  fact  that  no 
executive  officer,  no  member  of  the  cabinet,  has  a  seat  in 
either  chamber,  makes  defence  very  difficult.  The  ex 
ecutive  branch  has  no  direct  and  legitimate  way  of  bring 
ing  its  case  before  the  people. 

Much  of  the  patronage  which  has  been  given  to  the 
President  has  been  administered  by  Senators.  They 
claim  it  and  use  it  as  a  political  instrument  in  the  admin 
istration  of  parties.  This,  with  the  hold  they  have  on 
the  legislatures  of  the  several  States  by  virtue  of  their 
method  of  election,  oftentimes  makes  them  political  dic 
tators  in  their  own  field. 

The  President  is  as  dependent  as  any  other  officer  for 
nomination  and  election  on  the  political  party  which  he 
represents.  He  cannot  easily  take  any  independent  atti 
tude  in  reference  to  it.  His  bondage  is  proportionate  to 
the  favor  conferred  upon  him  and  to  the  manifold  favors 
which  he  is  to  confer  in  return.  Civil  service  makes  for 
the  comfort  and  the  dignity  of  the  President.  He  is  no 
longer  in  the  formal  possession  of  powers  which  he  cannot 
actually  exercise. 

§  10.  One  of  the  most  important  duties  entrusted  to 
the  President  is  that  of  negotiation.  Yet  he  is  much 
restrained  in  its  performance.  Discussions,  resolutions, 
and  requests  in  Congress  are  liable  at  any  time  to  bring 
embarrassment  to  the  President ;  and  a  treaty  which  has 
cost  much  labor  may,  as  in  the  case  of  the  arbitration 


1 24  The  Growth  of  Nationality 

treaty,  be  criticised,  delayed,  and  finally  thrust  aside  in 
the  Senate  for  reasons  of  a  vague  and  doubtful  character. 
A  successful  use  of  executive  powers  is  only  possible  in 
connection  with  close,  sympathetic  action  on  the  part  of 
Congress.  It  becomes,  therefore,  a  serious  defect  in  our 
Constitution  that  it  provides  no  means  for  concurrent 
counsel  and  action.  A  power  is  entrusted  to  one  depart 
ment  which  can  only  be  advantageously  used  in  close 
connection  with  another  department,  and  yet  the  two 
departments  are  left  to  make  whatever  terms  or  fall  into 
whatever  dissensions  may  chance  between  them.  Unity  of 
sentiment  is  made  to  depend  on  personal  tact  and  politi 
cal  interests,  instead  of  being  profoundly  involved  in  the 
discussion  and  the  development  of  events.  There  must 
be  harmony  in  a  strong  government  between  the  legisla 
tive  and  the  executive  branches.  They  have  to  do  with 
different  relations  of  one  policy.  The  conditions  which 
should  control  legislation  are  brought  to  light  in  the  ad 
ministration  of  law  and  in  executive  activity.  Legislation 
cannot  proceed  prosperously  without  a  full  knowledge  of 
the  circumstances  under  which  it  is  to  be  applied;  nor 
can  the  executive,  under  any  exigency,  feel  sure  of  his- 
ground  if  he  does  not  enjoy  the  cordial  support  of  the 
legislative  body.  These  obvious  facts  have  had  hitherto 
less  weight  with  us  than  belong  to  them,  because  of  the 
easy  and  safe  conditions  that  have  usually  fallen  to  us  as 
a  people. 

Independence  between  these  departments  is  a  less 
fundamental  principle  than  harmony.  We  have  done 
more  for  the  former  than  for  the  latter  in  our  Constitu 
tion.  We  have  relied  on  favoring  circumstances  and  on 
the  unity  of  the  people  to  keep  the  two  branches  in  line 
with  each  other  and  with  public  opinion.  In  the  degree 


Strife  between  Departments  125 

jn  which  politics  becomes  a  craft, — the  craft  of  a  few  who 
are  but  feebly  aware  of  the  better  and  more  settled 
sentiments  of  the  community — this  independence  of  de 
partments  is  liable  to  lapse  either  into  strife  or  into  sub 
servience.  We  are  likely  to  have  a  President  who,  in  a 
firm  discharge  of  his  duties,  chafes  under  the  criticism  and 
obstruction  of  Congress;  or  one  who  submits  himself  to 
the  influences  nearest  to  him,  and  is  borne  on  by  political 
forces  which  he  may  seem  to  guide  but  by  which  he  is 
governed.  We  have  made  no  sufficient  provision  for 
counsel  and  concert  between  the  two  great  departments, 
and  their  relations  are,  therefore,  almost  necessarily  sub 
ject  to  accident  or  to  intrigue.  The  history  of  the 
English  constitution,  which  was  ripened  under  a  long 
experience  in  the  perplexed  and  critical  school  of  liberty, 
teaches  us  a  very  different  method  from  our  own.  The 
impeachment  of  a  President  is  almost  as  much  the  im 
peachment  of  a  department  as  of  a  man.  It  leaves  us 
where  the  House  of  Commons  was  when  its  last  defence 
was  to  impeach  the  ministers  of  the  king. 

§  II.  Congress  itself,  in  its  two  chambers,  has  de 
veloped  in  a  direction  hardly  anticipated,  and  in  a  way  in 
which  it  has  become  less  the  organ  of  national  life.  It  is 
a  primary  function  of  a  legislature  to  aid  in  expressing, 
and  in  unfolding,  the  national  life;  to  become  the  con 
scious  and  vocal  centre  of  that  which  is  most  characteris 
tic  and  expressive  in  political  thought.  The  Senate  was 
intended  to  be,  and,  in  the  outset,  was,  closely  united 
with  the  executive  department.  For  five  years  its  sessions 
were  secret.  A  stenographer  was  not  admitted  till  1801. 
For  twenty-five  years  it  was  without  committees.  Repre 
senting  the  sovereignty  of  the  States,  it -was  to  surround 
and  sustain  the  greater  sovereignty  of  the  nation.  The 


i26  The  Growth  of  Nationality 

Senate  has  become  a  sluggish  and  conservative  branch  of 
the  legislature.  Its  small  numbers,  the  long  period  of 
service  of  its  members,  the  common  practice  of  returning 
Senators  for  several  terms,  the  age  and  dignity  of  Senators, 
its  indolent  and  easy  methods,  a  membership  very  gener 
ally  associated  with  the  wealth  of  the  community  repre 
sented,  the  political  leadership  of  Senators  in  their  several 
States,  and  the  long  period  required  in  which  to  change 
its  political  complexion,  make  it  a  body  through  which  it 
is  very  difficult  to  force  progressive  measures,  and  not 
easy  to  touch  anew  with  any  vital  impulse.  It  is  conserv 
ative  to  a  degree  that  often  puts  it  out  of  sympathy  with 
the  mass  of  the  people. 

The  Senate,  in  its  original  construction,  was  a  conces^ 
sion  to  the  smaller  States,  and  the  nature  of  this  con 
cession  has  become  more  significant,  rather  than  less 
significant,  with  the  progress  of  years.  When  the  smaller 
States  are  scattered  among  the  larger  States,  and  are 
subjected  to  much  the  same  conditions,  the  concession 
made  to  them  is  not  one  of  much  political  moment.  The 
case,  however,  is  altered  when  they  fall  into  groups  with 
interests  of  their  own  in  conflict  with  the  general  in 
terests.  Thus  in  the  slavery  controversy  not  only  were 
the  Southern  States  granted  a  partial  representation  of 
their  slaves  in  the  House, — in  the  Senate,  which  was  made 
the  stronghold  of  slavery,  the  numbers  represented  by 
Northern  and  Southern  Senators  were  relatively  increas 
ing  in  favor  of  the  North.  The  growth  of  population 
was  most  marked  in  the  free  States.  In  1860,  the  census 
just  preceding  the  war  showed  six  of  the  eight  largest 
States  to  be  free  States  and  two  to  be  border  States.  In 
the  very  critical  discussion  which  has  arisen  in  connection 
with  the  currency,  the  extreme  Western  States,  governed 


Strife  between  Departments          127 

by  somewhat  narrow  and  local  interests,  have  favored 
every  effort  to  'maintain  the  value  of  silver.  Yet  ten 
of  these,  commencing  with  Nevada,  have  an  aggregate 
population  not  much  surpassing  that  of  New  York  City, 
and  have  twenty  votes  in  the  Senate,  while  the  cky  has 
the  fraction  of  one.  The  financial  interests  represented 
are  in  still  greater  disproportion.  When,  therefore,  these 
States  press  a  financial  policy  ruinous  to  the  entire  nation, 
this  inequality  of  representation  becomes  unsatisfactory. 
The  tail  is  allowed  to  wag  the  dog. 

The  control  of  the  Senate  easily  slips  from  the  domi 
nant  party.  Some  third  interest,  like  that  represented  by 
the  Populist,  enters,  and  legislation  assumes  an  uncertain 
and  irresponsible  character.  That  is  done  which  can  be 
done  and  not  that  which  the  people  wish  to  be  done.  A 
disturbing  element,  once  established  in  the  Senate,  may 
exert  a  very  disproportioned  and  disastrous  influence 
which  it  requires  a  long  time  to  eliminate. 

§  12.  The  House  has  also  much  changed  in  character. 
It  has' lost,  in  a  high  degree,  the  power  of  deliberation, 
and  has  become  the  direct  and  ready  instrument  of  the 
ruling  party.  Its  office  of  concentrating,  quickening,  and 
guiding  the  national  life  by  discussion,  and  a  reconcilia 
tion  of  all  interests,  has  disappeared.  It  falls,  with  its 
accumulated  weight,  into  one  or  the  other  political  pan, 
till  the  people  in  sheer  impatience  shift  the  balance.  The 
criticism  of  an  active  opposition  and  the  restraint  of  an 
easy  loss  of  power  are  almost  wholly  wanting.  The 
Speaker  has  become  the  despotic  master  of  the  House, 
and  only  those  measures  which  he,  as  leader  of  his  party, 
favors,  gain  any  consideration. 

Reasons  can  be  given  to  justify  this  change ;  the  size  of 
the  body,  the  multitude  of  the  measures  proposed,  the 


128  The  Growth  of  Nationality 

absence  of  any  other  efficient  guidance,  the  futility  of 
discussion  that  is  directed  as  much  to  one's  constitu 
ents  as  to  the  case  in  hand,  the  strength  of  party  disci 
pline,  and  the  fact  that  discussion  has  ceased  to  influence 
action.  All  these  reasons,  however,  only  reveal  the  fact 
and  arise  from  the  fact  that  the  House  is  ceasing  to  be 
the  council  of  a  great  nation  and  has  been  turned  into  the 
seat  and  instrument  of  party  politics.  The  Speaker,  the 
most  potent  political  factor  in  the  government,  wields  his 
power  not  by  the  choice  of  the  people,  not  in  the  per 
formance  of  any  definite  duties  they  have  assigned  him, 
but  as  the  result  of  an  unintentional  decay  of  political  life 
and  an  unwholesome  growth  of  political  parties.  Natural 
as  the  change  has  been,  it  is  not  one  which  stands  for  the 
favorable  development  of  free  institutions.  It  is  rather 
one  which,  while  making  the  decline  of  legislative  vigor 
for  the  moment  bearable,  itself  becomes  more  and  more 
objectionable.  It  is  one  step  in  that  furtive  transfer  of 
political  power  from  the  people  to  political  parties.  It 
marks  the  partial  miscarriage  of  the  primary  purpose  of 
liberty. 

Free  institutions  have,  in  themselves,  less  force  than 
other  institutions.  It  is  of  the  very  nature  of  freedom  to 
leave  more,  not  less,  to  the  choice  of  the  people.  The 
popular  mind  has  expected  more,  far  more,  from  institu 
tions  than  it  had  any  right  to  expect,  and  demanded  less, 
far  less,  from  itself  in  the  use  of  these  institutions  than  it 
ought.  It  is  of  the  very  nature  of  liberty  to  open  the 
door  to  the  evil  and  to  the  good,  to  the  indifferent  and  to 
the  devoted  citizen  alike.  We  have  suffered,  as  a  people, 
immensely  from  extreme  individualism.  The  one  party 
has  held  it  as  an  avowed  doctrine  of  obstruction,  re 
ducing  government  to  its  lowest  terms;  and  the  other 


Strife  between  Departments  129 

as  a  doctrine  of  progress,  furtively  diverting  government 
into  the  support  of  special  interests.  Individualism  as 
an  extreme  principle  may  equally  be  urged  in  defence 
of  indolence  and  of  aggressive  activity.  The  conflict 
between  individuals  may  be  allowed  to  proceed,  the  gov 
ernment  retaining  the  attitude,  aside  from  certain  con 
ventional,  half-hearted  duties,  of  an  indifferent  spectator; 
or  the  stronger,  more  enterprising  classes  may  have  the 
right  of  way,  and  capture  for  their  own  ends  the  aid  of 
government.  Individualism  has  taken  constantly  with 
us  one  or  other  of  these  two  directions,  which,  under  the 
show  of  opposition,  are  both  ruled  by  one  self-seeking 
temper.  In  the  meantime  the  public  welfare,  the  con 
currence  of  powers  in  all  persons  and  classes,  the  recipro 
cal  aidfulness  of  the  individual  and  the  community,  are 
neglected. 

Under  the  individualistic  temper  politics  becomes 
simply  another  field  to  be  explored  and  exploited  in  be 
half  of  the  adroit  and  unscrupulous.  The  party  tie,  as  an 
essential  means  to  success,  receives  exaggerated  emphasis. 
It  is  identified  with  patriotism,  and  its  preservation  is 
urged  as  the  first  duty  of  the  good  citizen.  Thus  tyranny, 
which  always  means  the  trespass  of  unrestrained  indi 
vidualism,  sets  in  from  all  sides,  and  fidelity  is  made  the 
catchword  of  its  adherents.  We  suffer  that  astonishing 
travesty  of  liberty  in  which  we  take  the  will  of  leaders, 
whom  we  have  in  no  way  chosen,  as  our  will. 

The  great  advantage  of  a  free  government  is  not  that 
it  leaves  every  man  to  fulfil  his  own  individual  impulses, 
but  that  it  enables  the  people,  if  so  disposed,  to  define 
and  enforce  reciprocal  rights,  to  secure  a  collectivism  that 
assigns  the  best  bounds  to  individualism.  Collectivism 
is  free  government  on  its  positive  side;  individualism  is 

9 


130  The  Growth  of  Nationality 

free  government  on  its  negative  side.  In  good  govern 
ment  the  two  are  reconciled.  The  lesson  which  a  free 
people  must  first  learn  is  the  lesson  of  responsible,  collect 
ive  action.  The  wisdom  and  force  of  law  are  in  the 
minds  of  the  people,  and  must  be  maintained  there  as  a 
living,  growing  force.  No  government  decays  more 
rapidly  than  a  free  government  when  the  people  fail  to 
apprehend  it,  or  negligently  turn  from  it. 

§  13.  The  old  man  of  the  sea,  riding  us  to  our  over 
throw,  submerging  us  ever  deeper  in  the  water,  is  the 
supremacy  of  politicians,  men  who  have  aptitude  for  in 
trigue  and  who  take  to  themselves  public  affairs  as  the 
best  field  for  its  exercise.  Their  instruments  are  personal 
influence  and  interest,  the  caucus,  and  the  political  con 
vention.  Their  code  of  morality  is  made  up  of  the  sim 
ple  sentiment,  faithfulness  to  party.  With  this  meagre 
equipment  they  come  between  the  people  and  their  civic 
duties,  and  turn  our  liberty  into  a  vulgar  illusion.  A 
partisan  temper,  nourished  as  a  life-long  faith,  and  fed 
by  any  and  every  form  of  victory,  blinds  the  judgment 
and  satisfies  the  feelings.  The  mass  of  citizens  are  led  by 
the  catchwords  familiar  to  them,  and  with  a  very  obscure 
apprehension  of  the  insignificant  part  they  are  playing. 

When  the  people  unexpectedly  find  that  great  evils 
have  crept  into  society,  as  the  fruit  of  this  government 
by  those  busy  with  their  own  schemes  of  emolument; 
that  wealth  has  grasped  successfully  at  opportunities 
which  belonged  to  the  people  in  common ;  that  taxation 
has  become  unequal  and  oppressive;  that  inefficiency 
and  corruption  have  characterized  municipal  affairs,  they 
become  restive  and  unreasonable.  They  distrust  institu 
tions  which  have  betrayed  them,  because  these  were  first 
betrayed  by  them. 


Strife  between  Departments  13* 

Our  national  life  is  to-day  greatly  weakened  by  the 
disillusion  we  are  undergoing  in  reference  to  our  free 
government.  We  get  back  slowly  and  painfully  to  the 
solid  principle — no  more  applicable  to  our  government 
than  to  all  governments — that  the  means  must  be  pro 
portioned  to  the  ends,  that  an  intelligent,  patriotic, 
public-minded  people  is  the  only  guaranty  of  a  good 
government. 

The  evils  of  which  we  have  spoken  are  symptomatic 
and  partial.  They  call  for  no  profound  remedy  in  forms, 
but  a  constant  correction  in  spirit.  They  constitute  an 
earnest  appeal  to  the  nation  for  a  more  pervasive  national 
life;  and  they  may  beget  such  a  life.  They  belong  to 
that  class  of  difficulties  which  serve  to  instruct  and 
stimulate  those  subject  to  them ;  difficulties  that  we 
always  have  with  us.  It  may  be  deemed  fortunate 
that  when  political  influences  of  the  narrower  order  have 
so  conquered  the  House,  a  stubborn  conservatism  finds 
shelter  in  the  Senate.  The  diagonal  direction  between 
the  two  is  not  as  dangerous  a  path  as  either  might  pursue 
separately. 


CHAPTER    VI 

Strife  between  Classes 

§  I.  THE  conflicts  we  have  now  considered  have  lain 
between  local  and  national  government,  between  diverse 
forms  of  local  government,  and  between  the  different  de 
partments  of  government.  The  first  two  of  these  the  war 
of  the  rebellion  brought  to  an  end ;  nor  are  they  likely 
to  revive  again.  We  have  now  more  to  fear  from  an 
undue  predominance  of  the  central  government  than 
from  any  centrifugal  restlessness  of  the  constituent  States. 
The  third  contention,  that  between  departments,  has 
never  been  threatening  and  in  its  most  violent  form 
was  an  incident  of  the  Civil  War.  The  United  States 
has  won  a  nationality  very  complete,  and  constantly  be 
coming  more  so,  as  regards  the  relation  of  its  several  local 
portions  to  each  other,  and  as  regards  the  harmony  of 
administration  between  its  departments.  Our  present 
danger  is  the  reverse  of  that  which  lay  in  our  path  at  the 
beginning.  The  magnitude  of  the  interests  and  powers 
which  gather  about  the  General  Government  are  ready  to 
dwarf  those  more  specific  and  social  duties  which  remain 
with  the  States.  The  General  Government,  in  taking  to 
itself  the  innumerable  and  pervasive  interests  associated 
with  interstate  commerce,  becomes  more  impatient  of  any 
disorder  in  any  of  the  States,  and  more  inclined,  as  in  the 
disturbances  of  1894,  to  correct  it  at  once  with  the  strong 
hand  of  power.  There  is  in  this  both  evil  and  good. 

132 


Strife  between  Classes  133 

When  local  strife  involves  social  questions  of  moment, 
physical  force  offers  no  adequate  and  final  solution.  We 
may  well  contemplate  with  regret  the  summary  way  in 
which  it  pushes  aside  and  postpones  contention  that  is 
waiting  the  reconciliation  of  justice  and  of  truly  common 
terms  of  life.  There  is  a  hard  and  unwise  conservatism 
ready  to  applaud  this  prompt  intervention  of  national 
power.  Yet  it  has  in  it  much  of  the  concealed  virus  of 
tyranny.  Few  social  evils  are  likely  to  find  adequate 
correction  while  they  can  be  swept  aside  by  sheer  force. 

§  2.  There  is  a  fourth  contention  upon  us,  which  will 
be  only  the  more  severe  and  dangerous  because  of  the 
great  extension  of  our  common  life  and  growth  of  our 
national  power— that  springing  up  between  classes,  or,  as 
it  is  sometimes  put,  that  between  the  classes  and  the 
masses.  This  is  a  strife  far  more  penetrative,  more  inimi 
cal  to  national  life,  than  those  which  have  preceded  it. 
We  reach  in  it  the  great  disintegrating  causes  in  society. 

We  have  now  to  settle  what  has  not  been  settled  in 
human  history — the  terms  under  which  men  can  happily 
labor  with  each  other  in  behalf  of  and  in  submission 
to  the  public  welfare.  This  is  the  fundamental  question 
of  national  life:  whether,  its  formal  terms  being  advan 
tageously  settled,  that  life  can  expand  under  them  and 
a  people  be  thoroughly  integrated,  within  and  without, 
by  vigorous  and  prosperous  growth.  The  prosperity  of 
a  people  can  no  longer  be  defined  in  terms  of  wealth 
merely,  or  civilization  that  attaches  to  classes;  it  must 
be  defined  in  terms  which  express  the  common  social 
welfare,  and  run  through  the  body  of  the  nation. 

The  very  rapid  development  of  production  during  the 
last  century,  of  which  we  as  a  nation  have  given  a  con 
spicuous  example,  has  made  prominent  the  question  of 


134  The  Growth  of  Nationality 

classes,  and  the  division  of  advantages  between  them. 
The  value  of  a  fresh  continent,  of  manifold  inventions 
and  discoveries,  of  free  institutions,  is  not  a  little  more 
political  power,  but  a  more  equal  and  enjoyable  participa 
tion  in  the  fruits  of  collective  labor;  a  life  that  can  fairly 
be  called  a  life  of  the  people.  If  free  institutions  do  not 
manifestly  tend  to  this  result,  they,  like  other  institu 
tions,  become  a  mockery  of  the  popular  mind.  It  is 
doubt  at  this  point  which  occasions  more  restlessness, 
more  distrust  of  our  national  development,  than  any 
other  feeling.  If  we  are  to  repeat  the  history  of  the 
world,  as  it  has  been  rehearsed  up  to  the  present  time ; 
if  it  is  only  a  momentary  relief  that  we  have  gained  by 
the  large  opportunities  which  have  fallen  to  us  in  a  fresh 
continent;  if  we,  in  turn,  under  the  old  familiar  laws 
of  competition  and  trade,  are  to  sink  back  into  oppug- 
nant  classes,  into  unendurable  poverty  and  inadmissible 
wealth,  then  the  decay  of  our  national  life  is  predeter 
mined,  and  the  extinction  of  those  hopes  we  have  asso 
ciated  with  liberty.  Our  true  contention  is  with  social 
principles,  with  those  physical,  commercial,  and  moral 
forces  which  have  so  far  separated  men  from  each  other, 
and  seamed  in  all  directions  the  civic  combinations  they 
have  been  able  to  secure. 

We  have  started  on  this  struggle  for  a  common  life,  a 
struggle  which  must  deepen  in  intensity  with  every  people 
as  it  grows  in  prosperity.  We  have  associated  liberty  and 
equality,  and  made  the  one  the  guaranty  of  the  other. 
Though  we  have  not  understood  our  primary  principle 
of  freedom,  either  in  its  scope  or  its  method,  we  have 
still  trusted  that  it  would  lead  us,  by  an  inevitable  force 
of  its  own,  into  general  and  diffused  prosperity. 

We  have  thrown  our  entire  strength  into  production; 


Strife  between  Classes  135 

we  have  accepted  inadequate  economic  laws  with  the 
confidence  and  simplicity  of  childhood  ;  we  have  believed 
the  individual  sufficient  unto  himself,  and  that  liberty  lies 
primarily  in  clearing  the  field  for  him.  We  are  awaken 
ing  but  slowly  from  this  illusion  of  a  national  life  wrought 
out  by  self-interest  on  an  industrial  basis  simply.  We 
are  beginning  to  see  that  many  of  the  things  which  should 
have  accrued  to  the  common  welfare  have  been  stolen 
while  we  slept;  that  our  public  affairs  have  been  shame 
fully  mismanaged;  and  that  we  are  in  danger  of  coming 
under  two  of  the  worst  forms  of  tyranny:  that  of  wealth 
in  our  social  life,  and  that  of  corruption  in  our  political 
life. 

The  decay  which  has  crept  in  unawares,  and  the  dis 
closure  of  growing  injustice  which  has  come  as  a  shock, 
have  separated  classes  and  brought  them  into  collision, 
with  much  strain  of  national  ties.  It  is  some  of  the  lead 
ing  features  of  this  dangerous  struggle — so  easy  of  ex 
aggeration,  so  easy  of  neglect — that  we  wish  to  consider. 
Here  more  than  elsewhere  will  be  found  the  influences 
which  are  to  control  our  future  growth  as  a  nation. 

§  3.  The  basis  of  liberty — it  would  be  better  to  say 
the  basis  of  individualism — in  the  field  of  production  is 
freedom  of  contract.  Perhaps  not  another  principle  has 
come  as  frequently  under  judicial  consideration  as  this 
primary  law  of  existing  commercial  relations,  the  freedom 
and  obligation  of  contracts.  Among  the  few  prohibi 
tions  laid  in  our  Constitution  on  the  States  is  the  prohi 
bition  that  they  shall  pass  no  law  violating  the  obligation 
of  contracts.  The  portion  of  our  divided  government 
which  is  most  domestic  in  its  character  and  nearest  to 
the  people  is  that  of  the  States.  Here  the  temptation  is 
most  constantly  present  to  interfere  with  personal  rights. 


136  The  Growth  of  Nationality 

It  is  one  of  the  felicities  of  our  government  that  it 
provides  a  comprehensive  supervisory  power,  itself  less 
tempted  and  less  able  to  trespass,  that  is  ready  to  re 
strain  the  States  in  any  departure  from  certain  fundamen 
tal  principles  of  good  government. 

This  principle  of  the  freedom  of  contract,  while  it  is  a 
first  condition  and  expression  of  commercial  liberty,  must 
take  on  serious  qualifications  if  we  are  to  move  freely  for 
ward  into  those  complex  states  of  society  in  which  per 
sonal  liberty  must  often  be  waived  in  one  direction  in 
order  that  it  may  be  secured  more  fully  in  other  direc 
tions.  An  absolute  freedom  of  contract,  with  its  cor 
relative  term,  the  obligation  of  contracts,  would  imply 
equality  of  powers  and  conditions  between  contracting 
parties  and  a  constant  deference  on  their  part  to  those 
overruling  social  interests  in  whose  meshes  their  particular 
agreements  were  enclosed.  If  we  are  to  make  a  ring 
around  two  combatants,  we  must  justify  the  battle  as  in 
itself  fair  and  honorable,  and  as  consistent  with  the  gen 
eral  welfare  of  society.  Otherwise  our  liberty  becomes 
of  the  nature  of  license,  and  will  provoke  extension  and 
retaliation. 

§  4.  Our  experience  as  a  nation  under  this  principle 
has  lain,  first,  in  its  establishment,  and  then  in  a  slow 
discovery  of  its  many  limitations;  and  a  painful  assertion 
of  them.  One  of  the  earliest  and  most  successfully  per 
formed  duties  of  the  Supreme  Court  was  found  in  inter 
preting  and  enforcing  this  restriction  of  the  Constitution. 
A  leading  case,  one  whose  influence  has  been  very  exten 
sive,  was  that  of  Dartmouth  College,  4  WJieaton,  518.  It 
was  decided  that  the  college  was  a  private  corporation, 
that  any  alteration  of  its  charter  by  the  Legislature  of 
New  Hampshire,  without  the  consent  of  its  trustees,  im- 


Strife  between  Classes  137 

paired  the  obligation  of  contracts.  Chief- Justice  Marshall 
gave  the  decision,  supported  by  Justices  Story  and  Wash 
ington.  Five  of  the  six  judges  concurred.  The  two 
significant  points  were  that  the  college,  notwithstanding 
its  public  and  eleemosynary  character,  was  a  private  cor 
poration,  and  that  it  held  its  rights  beyond  the  power  of 
control  of  the  legislature. 

In  1827,  in  the  case  of  Ogden  vs.  Saunders,  12  WJieaton, 
213,  the  same  question  of  contracts  arose  in  connection 
with  a  bankrupt  law  passed  by  the  Legislature  of  New 
York.  Webster,  whose  plea  in  the  Dartmouth  College 
case  had  gained  attention,  argued  with  great  subtlety 
that  the  bankrupt  law  in  question  impaired  the  obliga 
tion  of  contracts,  and  could  not  be  enacted  by  a  State. 
Marshall  and  Story,  so  closely  identified  with  the  earlier 
decision,  regarded  the  law  as  unconstitutional.  The 
case  was  decided,  four  to  three,  that  a  law  discharging 
a  person  in  connection  with  his  future  transactions  from 
the  claims  of  his  creditors,  was  not  a  law  impairing  the 
obligation  of  contracts.  The  property  acquired  and  the 
debts  contracted  subsequent  to  the  law  came  under 
the  conditions  assigned  by  the  law.  Thus  the  principle 
prevailed,  that  the  obligation  of  contracts  might  be 
modified  if  the  action  was  not  retrospective.  This  was 
a  concession  which  Marshall,  Story,  and  Webster,  who 
had  been  so  active  in  maintaining  the  principle  of  invio 
lability,  were  not  willing  to  concede.  The  decision  was, 
in  fact,  an  illogical  one,  but  in  wise  concession  to  the 
public  welfare.  It  did  not  allow  the  tie  of  contract  to  be 
drawn  so  closely  as  to  constrain  and  strangle  still  greater 
interests. 

In  the  case  of  Jackson  vs.  Lamphire,  3  Peters,  280,  it 
was  decided  that  a  law  requiring  the  recording  of  a  deed, 


i38  The  Growth  of  Nationality 

or  a  law  in  limitation  of  the  period  of  legal  claims,  was 
not  an  impairing  of  contracts.  Contracts  remained  sub 
ject  to  the  general  safety  and  convenience  of  the  public. 
Thus  inviolability  was  not  to  be  pleaded  in  so  absolute 
a  form  as  to  preclude  laws  of  general  protection. 

The  case  of  Providence  Bank  vs.  Billings  and  Pittman, 
4  Peters,  514,  carried  the  limitation  of  contracts  one  stage 
farther.  Contracts  were  not  to  be  pleaded  in  suspension 
of  the  ordinary  functions  of  government.  The  Provi 
dence  Bank  resisted  the  imposition  of  a  tax  because  its 
charter,  a  contract  between  itself  and  the  government 
which  defined  its  legal  status,  made  no  provision  for  taxa 
tion.  The  Court  held  that  the  power  to  tax  was  of  vital 
importance  to  the  State ;  that  the  release  of  this  power 
was  not  to  be  assumed;  that  if  released  at  all,  it  must  be 
released  in  express  words;  that  it  was  not  necessary  to 
reserve  this  power  in  a  charter.  A  charter  imparts  the 
character  and  rights  of  an  individual  to  a  corporate  body, 
but  the  liability  to  taxation  is  one  that  rests  on  all  in 
dividuals.  If  any  exemption  is  made  it  must  be  definitely 
conceded.  The  corporation  is  not  to  stand  on  a  higher, 
more  impregnable  ground  than  does  the  citizen. 

§  5.  In  the  suit  of  the  Proprietors  of  Charles  River 
Bridge  against  the  Proprietors  of  Warren  Bridge,  n 
Peters,  420,  the  implications  of  charters  were  extendedly 
discussed.  The  case  covers,  as  reported,  239  pages. 
The  court  was  divided,  four  to  three.  Webster  was 
present  to  sustain  the  charter  as  a  contract,  and  Story 
was  again  in  dissent  from  the  opinion  of  the  Court,  which 
sustained  the  legislature  in  granting  a  second  charter  in 
limitation  of  the  earlier  one. 

The  Charles  River  Bridge  Company  had  been  given  the 
right  to  build  the  Charles  River  Bridge,  superseding  a 


Strife  between  Classes  139 

ferry  owned  by  Harvard  College  and  extinguishing  the 
claims  of  the  college  by  a  yearly  payment.  Later, 
the  Warren  Bridge  Company  was  chartered  and  given 
the  right  to  build  a  bridge  just  at  hand  and  in  disastrous 
competition  with  the  earlier  bridge.  It  was  urged  by  the 
plaintiffs  that  the  exclusive  character  of  the  charter  was 
a  necessary  implication,  that  its  value  depended  upon  it, 
and  that  the  equivalent  they  rendered  the  public,  repre 
senting  the  State,  was,  in  a  large  degree,  lost  by  them,  if 
another  bridge  was  to  be  granted  the  same  privilege. 
The  decision  of  the  Court  was  given  by  Chief-Justice 
Taney,  and  was  an  early  illustration  of  the  temper  he 
brought  to  his  judicial  work. 

"  The  object  and  end,"  he  affirmed,  "  of  all  government  is 
to  promote  the  happiness  and  prosperity  of  the  community  by 
which  it  is  established  ;  and  it  can  never  be  assumed  that  the 
government  intended  to  diminish  its  power  of  accomplishing 
this  end  for  which  it  was  created.  And  in  a  country  like  ours, 
free,  active,  and  enterprising,  continually  advancing  in  num 
bers  and  wealth,  new  demands  of  commerce  are  daily  found 
necessary  both  for  travel  and  trade  and  are  essential  to  the 
comfort,  convenience,  and  prosperity  of  the  people.  A  State 
ought  never  to  be  presumed  to  surrender  this  power,  because, 
like  the  taxing  power,  the  whole  community  have  an  interest 
in  preserving  it  undiminished." 

The  case  of  the  Providence  Bank  was  especially  relied 
on  in  this  decision.  But  it  is  plain  that  the  conclusion 
reached  was  not  a  repetition  of  the  rendering  in  that  case, 
but  a  marked  extension  of  it.  The  power  to  tax  is  funda 
mental,  liable  at  any  moment  to  be  called  into  exercise. 
It  has  no  direct  connection  with  a  bank  charter  more 
than  with  many  another  charter.  The  inference  which 


140  The  Growth  of  Nationality 

suspended  this  right  of  the  State  was  a  remote  and  violent 
one.  There  was  much  assumption  in  pleading  this  im 
plication  against  the  State  in  the  exercise  of  its  habitual 
function.  In  the  case  of  the  Charles  River  Bridge  the 
exclusive  character  of  the  charter  was  an  essential  part  or 
measure  of  its  value.  The  very  reason  why  a  charter  was 
sought  lay  largely  in  the  fact  that  it  conferred  a  privilege, 
to  wit,  that  of  building  a  bridge  under  the  conditions 
then  present.  If  the  granting  of  the  right  by  the  State 
did  not  exhaust  its  power  in  this  direction,  the  case  was 
very  much  as  if  the  State  should  proceed  to  a  second  sale 
of  the  same  piece  of  property.  The  Charles  River  Bridge 
Company  rendered  its  service  to  the  public,  a  service 
somewhat  more  immediate  and  exacting  than  that  of  a 
bank,  on  this  very  understanding  that  its  privileges  were 
its  own,  were  exclusive.  The  very  obviousness  of  this 
conclusion  might  be  offered  as  a  reason  why  no  specifica 
tion  to  this  effect  appeared  in  the  charter. 

The  right,  also,  of  the  State  to  charter  another  bridge, 
in  competition  with  the  first  bridge,  was  not,  like  the 
power  of  taxation,  a  necessary  and  inalienable  power.  It 
was  only  a  specific  act  included  under  its  general  power 
to  provide  for  the  general  welfare,  and  in  and  of  itself  of 
no  great  significance.  If  its  exercise  in  the  first  charter 
had  been  held  to  restrain  its  exercise  in  a  second  charter, 
the  limitation  of  the  right  of  the  State  would  have  been 
inconsiderable,  and  would  have  been  its  own  act.  The 
losses  incident  to  it  would  have  had  their  compensations 
in  the  advantages  secured  by  the  first  bridge.  The  les 
sons  taught  would  have  been,  on  the  one  side,  a  faithful 
and  large  adherence  by  the  State  to  its  contracts,  and,  on 
the  other  side,  caution  and  foresight  in  forming  these 
contracts. 


Strife  between  Classes  141 

§  6.  The  principle  involved  in  the  Charles  River 
Bridge  decision  looks  to  the  conclusion  that  the  State 
cannot  bind  itself  to  the  permanent  restriction  of  its 
powers;  that  the  essential  duty  and  right  of  the  State  to 
watch  over  the  general  welfare  are  always  present ;  that 
it  cannot,  like  an  individual,  be  put  to  a  permanent  dis 
advantage,  in  the  performance  of  its  function,  by  con 
tracts  with  individuals.  It  is  doubtful  whether  even  the 
most  explicit  words  can  divest  the  State  of  its  fundamen 
tal  rights;  whether  it  can  contract  away  its  indefeasible 
powers.  These  rights  and  powers  spring  up  anew  in  ever 
lasting  youth,  born,  in  the  second  instance  as  in  the  first, 
from  the  necessity  of  the  case.  The  laws  of  to-day,  even 
the  current  Constitution,  can  be  repealed  to-morrow  and 
replaced  by  wholly  new  obligations;  themselves  to  last 
only  so  long  as  they  subserve  their  purpose.  The  whole 
can  never  be  bound  by  the  parts;  the  inner  life  cannot 
be  compelled  to  submit  itself  permanently  to  the  re 
straints  which  have  been  slowly  accumulated  upon  it; 
each  generation  is  the  compeer  of  every  other,  and  is  not 
to  find  its  privileges  sold  from  under  its  hand  by  a  pre 
vious  generation.  The  nation  asserts  itself  with  powers 
constantly  renewed  ;  it  is  ever  abrogating  the  old  in  some 
fresh  way  for  some  broader  end.  How  far  it  will  accept 
the  past,  and  how  far  reject  it,  is  an  ever-returning 
question  involving  the  deepest  wisdom. 

This  case  is  an  excellent  illustration  of  the  fact  that  no 
principle,  not  even  the  soundest,  can  be  applied  in  an 
inflexible  way.  Principles  cut  into  each  other,  supple 
ment  each  other,  and  sustain  each  other  as  all  equally 
parts  of  a  comprehensive  whole.  Looking  at  subsequent 
events,  we  cannot  fail  to  see  that  the  absolutism  of  Mar 
shall  and  Webster  were,  in  this  instance,  advantageously 


i42  The  Growth  of  Nationality 

displaced  by  the  opportunism  of  Taney.  The  State  can 
not  be  left  to  sell  itself  out  to  corporations.  It  cannot, 
in  the  presence  of  a  future  that  holds  so  many  unseen 
dangers,  bind  itself  with  bonds  it  cannot  snap  asunder. 
It  is  like  the  conscience  of  the  individual — it  may  freely 
reverse  its  own  decision,  and  transfer  the  undying  obliga 
tion  to  a  new  position.  The  State  is  the  one  terminal 
bud  that  breaks  through  and  pushes  back  all  its  scales 
when  it  no  longer  has  need  of  them. 

§  7.  This  doctrine  has  since  been  made  fruitful  in 
many  little  and  large  ways,  and  has  much  work  yet  to  do. 
No  sooner  does  any  one  throttle  the  State  than  he  is 
seized  with  a  supreme  sense  of  the  sacredness  of  vested 
interests — of  "  fidelity  to  property."  In  the  case  of 
Armstrong  vs.  the  Treasurer  of  Athens  County,  Ohio, 
1 6  Peters,  281,  the  land  which  had  been  granted  to  the 
University  of  Ohio,  and  which  had  been  held  by  the 
university  free  from  taxation,  was  pronounced  open  to 
taxation  in  the  hands  of  a  purchaser.  It  was  decided, 
State  of  Maryland  vs.  Baltimore  &  Ohio  Railroad,  3 
Howard,  534,  that  a  State  could  repeal  a  penalty  in  a  con 
tract,  if  of  the  nature  of  a  punishment.  In  the  act  of  in 
corporation  it  had  been  stipulated  that  certain  forfeitures 
were  to  be  incurred  under  certain  conditions.  These  were 
not  placed  beyond  the  power  of  the  legislature. 

It  was  affirmed  in  the  case  of  the  West  River  Bridge 
Company  vs.  Dix  and  others,  6  Howard,  507,  that  a 
State  may  condemn  property  held  by  a  corporation  under 
its  charter.  The  primary  purpose  of  a  law  of  incorpo 
ration  is  to  give  to  a  combination  of  persons  the  power, 
within  certain  limits,  to  act  together.  It  imparts  to  them 
a  legal  personality.  As  a  charter  lies  at  the  basis  of  such 
a  body,  the  tendency  became,  under  the  doctrine  of  the 


Strife  between  Classes  143 

obligation  of  contracts,  to  give  a  corporation,  not  the 
same  safety  and  liberty  which  belong  to  an  individual, 
but  a  greater  safety  and  a  more  absolute  liberty.  A 
specified  circle  of  rights,  enlarged  by  implication,  was 
established  in  the  State,  in  a  high  degree  independent  of 
it.  If  we  take  a  joint-stock  company  as  an  example,  we 
shall  find  that  we  have  in  it  a  legal  personality  that  in 
some  particulars  transcends  in  advantages  the  persons 
side  by  side  with  whom  it  operates.  The  joint-stock 
company  is  capable  of  indefinite  life.  It  may  pursue  an 
expansive  policy,  untouched  by  the  decay  and  death  in 
cident  to  individuals.  It  may  accumulate  capital  equal 
to  the  demands  of  the  greatest  undertakings.  The  best 
methods  are  within  its  reach.  Its  capital  comes  from 
many  sources,  imposes  little  or  no  burden  on  those  who 
contribute  it;  it  is  subject  to  no  vicissitudes  other  than 
those  of  the  business  itself,  and  is  not  liable  to  be  with 
drawn.  The  risks  of  those  who  hold  stock  are  confined 
to  a  single  sum.  The  independence,  power,  and  safety 
of  movement  of  a  prosperous  company  are  much  greater 
than  in  the  case  of  the  individual.  It  is  a  giant  among 
pigmies. 

It  has  the  further  advantage,  from  a  business  point  of 
view,  that  it  labors  under  none  of  the  personal  claims, 
sympathies,  and  appeals  of  duty  which  fall  to  the  in 
dividual.  It  runs  its  race  with  none  of  the  social  weights 
which  embarrass  persons.  If  now  we  are  to  add  to  these 
advantages  an  unusual  immunity,  by  virtue  of  a  charter, 
from  the  claims  of  the  State;  if  the  State  can  do  nothing 
to  modify  or  reclaim  the  rights  it  has  hastily  conceded  ;  if 
a  charter  can  be  pleaded  against  the  familiar  regulations 
of  the  State,  then  we  have  in  the  corporation  a  legal 
personality  which  can  not  only  push  aside  the  citizen,  but 


H4  The  Growth  of  Nationality 

defy  the  State  itself,  their  common  representative.  There 
is  that  born  of  the  State  from  which  the  State  soon  recoils 
in  dismay  and  fear.  The  only  safety  of  the  community 
is  found  in  that  brief  moment,  that  transient  opportunity, 
which  accompanies  the  concession  of  a  charter.  The 
ignorance,  negligence,  or  corruption  of  a  public  servant 
may  let  in  a  flow  of  evils  which  all  later  framers  of  law 
must  accept  and  support. 

There  was  sure,  therefore,  to  arise,  there  must  arise, 
another  doctrine  than  this  of  the  obligation  of  contracts, 
a  doctrine  which  was  becoming  the  security  of  a  wrong 
once  inflicted.  The  State  must  have  power,  equally  for 
its  own  sake  and  for  the  sake  of  the  citizen,  to  preserve 
and  to  rescue  its  own.  Every  pilfering  process  must  be 
set  aside,  and  all  the  more  when  it  is  accomplished  under 
the  forms  of  law.  Yet  most  plainly  this  work  is  an  ex 
ceedingly  delicate  one.  The  State  cannot  take  the  atti 
tude  of  refusing  to  be  bound  by  its  agreements — of 
keeping  no  faith  with  its  citizens.  When  it  makes  an 
explicit  agreement  that  runs  for  a  definite  period, — as  a 
contract  for  the  performance  of  some  work — its  integrity 
should  be  of  the  most  undoubted  order.  Yet,  even  the 
State  ordinarily  refuses  to  be  sued,  and  constitutes  itself 
the  judge  of  its  obligations. 

§  8.  There  is  plainly  a  real,  though  it  may  be  a  some 
what  vanishing,  distinction  between  the  obligations  a 
State  assumes  with  its  citizens.  Some  are  so  contained 
in  the  ordinary  relations  of  business  as  rightly  to  give  rise 
to  a  claim  for  redress  if  they  are  violated.  A  bridge  is 
left  in  an  insecure  condition;  a  citizen  suffers  injury 
thereby.  It  is  better,  both  for  the  person  suffering,  and 
for  the  State  inflicting,  the  injury,  that  it  should  be  open 
to  correction.  The  State  should  be  subject  to  some 


Strife  between  Classes  145 

coercion  in  the  performance  of  its  duties.  The  State  re 
fuses  to  build  a  bridge  which  would  promote  the  public 
welfare.  For  this  neglect  there  is  no  redress.  The  State 
cannot  have  its  work  defined  for  it  by  its  citizens,  or  be 
driven  forward  in  its  accomplishment.  No  sharp  line 
divides  the  two  classes  of  cases  from  each  other.  In  the 
municipal  affairs  of  a  great  city  they  blend  in  every 
variety  of  way.  In  one  relation  a  citizen  is  acting  with 
his  fellow-citizens,  and  with  them  constitutes  the  State 
and  shapes  its  policy.  In  another,  he  is  acting  as  a 
private  person  under  the  State,  which  he  encounters  as 
an  independent  party.  He  assumes  obligations  toward 
the  State,  and  the  State  accepts  obligations  toward  him. 
The  responsibility  of  each  to  the  other  is  of  equal  mo 
ment.  The  State,  however,  has  always  in  such  transac 
tions  a  double  bearing,  that  of  simply  a  party  to  an 
agreement,  and  that  of  one  by  whom  the  public  welfare 
is  held  in  perpetual  trust.  The  first  very  subordinate 
relation  cannot  be  allowed  to  override  the  second  funda 
mental  relation.  A  parent  may  come  under  a  promise  to 
a  child,  but  if  in  its  fulfilment  he  is  suddenly  confronted 
by  his  duty  as  a  parent,  that  duty  may  act  in  suspension 
of  his  word. 

§  9.  Much  the  same  distinction  arises  in  the  relation 
of  a  city  to  the  central  government  which  includes  it. 
There  are  many  rights  and  duties  of  a  city  which  ap 
proach  closely  those  of  a  simply  private  corporation.  It 
possesses  property,  requires  services,  and  renders  services 
on  fixed  business  principles.  In  the  midst  of  complex 
affairs  it  may  be  a  wide  participator.  On  the  other  hand, 
in  the  general  maintenance  of  the  conditions  of  health 
and  good  order,  and  in  the  enforcement  of  law,  the  city 
is  one  constituent  in  the  State,  and  the  supervisory  power 


i46  The  Growth  of  Nationality 

of  the  State  is  as  applicable  to  it  as  to  any  portion  of  its 
territory.  The  question,  then,  of  the  proper  bounds  of 
local  government  and  central  government,  of  municipal 
affairs  and  State  affairs,  is  not  unlike  that  of  the  separa 
ting  line  between  the  immediate  and  transient  obligations 
of  government  and  its  imperishable,  indefeasible  duties. 
Much  remains  to  be  done  in  analyzing  these  complex  re 
lations,  in  separating  the  local  from  the  general  interest, 
the  transient  from  the  permanent  safety  of  the  citizen. 
The  narrow  claim  is  sure  to  be  urged  more  vigorously 
than  the  wider  one.  Public  opinion,  precedent,  and 
private  feeling  are  likely  to  gravitate  toward  the  imme 
diate  right,  and  to  leave  the  more  comprehensive  idea  to 
make  what  shift  it  can  in  the  presence  of  clamorous 
interests. 

§  10.  The  form  under  which  that  portion  of  authority 
in  the  government  which  refuses  any  final  pledge  has 
been  asserted  and  defended  has  been  that  of  the  police 
power.  This  power  is  a  comprehensive  one,  not  easily 
defined,  yet  not  difficult  of  application  as  cases  arise 
under  it.  Each  instance  brings  its  own  light  with  it. 
The  core  of  the  idea  is  the  supervision  which  the  govern 
ment  is  bound  to  exercise  over  the  morals,  health,  good 
order  of  the  community.  The  sphere  alters  and  enlarges 
with  the  change  of  circumstances  and  the  growth  of 
civilization ;  and  the  State,  in  order  that  its  wisdom  and 
providence  may  have  full  expression,  must  preserve  to  its 
utmost  limit  this  police  power.  The  absence  of  a  final 
definition  is  not  so  much  a  defect  as  it  is  an  ever-renewed 
opportunity.  The  State  has  occasion  to  do  many  things 
as  if  it  itself  were  a  person  or  a  private  corporation. 
These  acts  may  well  come  under  the  laws  which  lie  be 
tween  man  and  man.  It  has  also  occasion  to  preserve 


Strife  between  Classes  147 

unrestricted  its  higher  sphere  of  correction  and  guidance. 
This  is  spoken  of  as  its  police  power,  because  it  finds  its 
most  palpable  expression  in  its  police.  In  this  power  the 
supremacy  of  the  State  is  in  constant  and  vital  exercise. 
It  cannot  be  frittered  away  by  contract.  The  State  can 
not  suffer  the  losses  of  a  spendthrift.  It  cannot  let  the 
years  gnaw  at  the  heart  of  its  own  strength. 

If  we  take  as  an  example  the  restrictions  of  any  branch 
of  trade,  made  fitting  by  the  growth  of  social  obligations, 
such  as  that  in  intoxicating  drinks,  the  State  frames 
these  laws  of  regulation  as  the  safety  of  the  community 
calls  for  them,  and  leaves  the  damages  thereby  done  to 
property  to  fall  as  they  may.  This  is  both  just  and  ex 
pedient.  The  cost  of  progress  is  not  to  be  taken  from 
the  individual  and  thrown  upon  the  public.  This  would 
be  to  add  another  great  obstacle  to  social  growth.  Public 
opinion,  in  a  case  of  morals,  ripens  but  slowly.  Restraint 
is  gradual  in  its  application.  The  citizen  has  time  enough 
in  which  to  discern  what  the  public  welfare  demands,  and 
to  adapt  his  action  to  it.  If  he  is  too  stupid  to  anticipate 
desirable  change,  or  so  wilful  as  to  resist  it,  the  disaster 
properly  falls  on  him.  The  case  is  not  this:  the  manu 
facture  and  sale  of  intoxicating  drinks,  sustained  by  the 
entire  community  up  to  a  given  moment,  and  then  sud 
denly  and  peremptorily  forbidden.  It  is  this:  a  long 
struggle  in  which  the  injury  of  the  traffic  becomes  more 
apparent  and  the  censure  more  pronounced — a  struggle 
brought  to  a  close  only  when  the  attitude  of  all  persons 
toward  the  public  welfare  has  become  plain.  Each  man 
must  then  bear  his  own  losses,  under  the  inevitable 
movement. 

In  the  case  of  an  invention  that  may  greatly  alter  the 
methods  of  production,  those  pursuing  the  old  way  en- 


148  The  Growth  of  Nationality 

dure  the  losses  of  change.  Many,  without  any  remissness, 
suffer  severely  from  the  progress  accruing  to  the  com 
munity  as  one  whole.  It  would  be  a  strange  maladjust 
ment  if  manufacturers  and  traders  should  be  relieved  by 
the  public  from  the  fruit  of  sluggish  morals,  and  laborers 
be  left  to  take  their  chances  in  the  shifting  of  production 
by  machinery,  without  the  slightest  fault  on  their  part. 
That  any  should  have  entertained  such  an  idea  shows  how 
unwisely  and  how  unfairly,  between  class  and  class,  we 
are  disposed  to  apportion  the  difficulties  incident  to 
growth. 

It  would  be  inexpedient  for  the  State,  aside  from  any 
lack  of  just  claim  on  the  part  of  those  whose  interests  are 
an  obstruction  to  its  progress,  to  take  to  itself  the  en 
tire  cost  of  improved  morals.  The  struggle  upward  is  at 
best  a  slow  and  painful  one.  If  the  State  were  to  assume 
the  losses  incident  to  the  reluctance  of  its  citizens  to  ac 
cept  the  better  conditions,  growth  would  become  much 
more  difficult.  Its  cost  would  be  largely  transferred  from 
those  opposing  it  to  those  favoring  it.  The  offender 
would  go  comparatively  free,  and  the  reformer  would 
bear  his  burden.  The  apportionment  of  the  losses  and 
the  gains  of  growth  under  natural  law  cannot  be  very 
much  altered  by  the  State.  The  citizen  may  well  be 
called  on  for  forecast  and  consideration  in  connection 
with  every  personal  interest  which  touches  the  public 
welfare.  He  is  not  at  liberty  to  stand  in  the  way  of  the 
State,  much  less  by  contract  to  claim  a  permanent  ad 
vantage  over  it.  This  is  the  sacrifice  of  supreme  interest 
in  the  presence  of  secondary  ones. 

§n.  The  Legislature  of  Mississippi  chartered,  in  1867, 
a  lottery  for  twenty-five  years.  The  lottery  company 
paid  $5000  to  the  State  University,  an  annual  tax  of 


Strife  between  Class^Sii!^*^ 

$1000,  and  one  half  of  one  per  cent,  of  its  receipts  for 
tickets.  In  1868  the  Constitution  of  the  State  was  altered 
and  forbade  lotteries.  It  was  held,  Stone  vs.  Missis 
sippi,  101  U.  S.,  814,  that  the  Legislature  of  the  State 
could  not  bargain  away  or  bind  the  police  power  of  the 
State.  Any  contract  that  entered  this  charmed  circle 
lost  its  controlling  power.  The  flax  perished  at  once  in 
the  flame  of  right.  The  people  themselves  cannot  bind 
themselves  in  the  face  of  duty.  Posterity  is  to  be  pro 
tected  from  any  voluntary  entail  of  wrong-doing. 

The  Legislature  of  Louisiana  incorporated,  in  1869,  the 
Crescent  City  Company,  giving  it  a  monopoly  in  landing 
and  slaughtering  animals.  In  1879  a  new  constitution 
gave  the  control  of  the  business  to  the  municipal  govern 
ment.  The  city  of  New  Orleans  restored  freedom  to  the 
traffic.  In  the  suit  of  the  Butcher  Union  Company 
against  the  Crescent  City  Company,  in  U.  S.,  746, 
Justice  Miller  said  that  the  charter  of  the  Crescent 
City  Company,  in  view  of  the  expenditure  it  involved, 
was  an  undeniable  contract,  that  it  was  set  aside  by  the 
action  of  the  city,  but  that  the  legislature  could  not  bind 
the  State  in  a  matter  of  public  health.  The  assertion  in 
this  case  was  not  that  a  method  which  better  served  the 
public  welfare  could  displace  one  less  advantageous  in 
this  particular,  but  the  broader  affirmation  that  in  a 
question  involving  the  public  welfare,  any  change  was 
open  to  the  people. 

That  all  rights  of  the  individual  and  of  a  corporation 
are  subject  to  the  police  power  of  the  State  was  enforced 
in  the  case  of  Beer  Company  vs.  Massachusetts,  7  Otto, 
25.  In  the  case  of  Fertilizing  Company  vs.  Hyde  Park, 
7  Otto,  659,  the  ordinance  of  the  city  abating  the 
company  as  a  nuisance  was  held  good  as  against  the 


150  The  Growth  of  Nationality 

privilege  granted  by  its  charter.  The  opposite  doctrine, 
that  the  action  of  a  city  in  excess  of  its  rights  as  a  ruling 
body  is  not  binding,  is  brought  out  in  the  case  of  Parkers- 
burg  vs.  Brown,  16  Otto,  487.  The  Legislature  of  West 
Virginia  had  authorized  the  city  of  Parkersburg  to  issue 
bonds  as  a  loan  to  a  manufacturing  company.  The  tax 
ing  power,  so  frequently  protected  against  abridgment, 
was  now  restrained  from  undue  extension.  It  was  held 
that  this  power  no  longer  retained  its  legal  force  when 
used  for  a  private  end.  The  city  had  no  right  to  assist  a 
private  enterprise  by  resources  drawn  from  the  public. 
This  principle,  thoroughly  applied,  would  be  destructive 
of  protective  duties.  Taxation  can  only  be  used  in  aid 
of  a  public  object,  an  object  within  the  purposes  for  which 
government  is  established  ;  Loan  Association  vs.  Topeka, 
20  Wallace,  655. 

§  12.  Liquor  laws,  both  those  partially  and  those 
completely  prohibitory,  are  expressions  of  the  police 
power.  It  was  early  held,  License  Cases,  5  Howard,  504, 
that  the  States  had  the  right  to  lay  restraints  on  the 
traffic  in  intoxicating  drinks.  The  exercise  of  this  right 
came  in  conflict  with  the  control  of  interstate  commerce 
by  Congress.  The  right  was  upheld  on  two  grounds: 
that  the  States  were  in  possession  of  a  concurrent  power 
of  regulation,  provided  that  they  passed  no  laws  in  con 
travention  of  the  laws  of  Congress;  and  that  laws  in  re 
straint  of  this  traffic  were  police  laws,  and  not  laws 
intended  to  regulate  the  commerce  of  the  States. 

Later,  when  an  attack  was  made  upon  the  prohibitory 
laws  of  Iowa  by  an  extensive  importation  and  sale  of 
liquors  in  the  original  package,  the  position  of  the  Su 
preme  Court  taken  in  the  License  Cases  was  modified ; 
Leisy  vs.  Harden,  135  U.  S.,  100.  These  sales  were 


Strife  between  Classes 

upheld  as  a  part  of  interstate  commerce.     Justices  Gray, 
Harlan,   and   Brewer   dissented,  adhering   to    the    more 
simple  and   convenient    doctrine   that    prohibitory    laws 
were  to  be  accepted  as  an  exercise  of  the  police  power. 
The  earlier  view  was  the  more  adequate  and  consistent 
disposition  of  the  question.     It  does  directly  what  is  now 
done  indirectly,  and  does  it  under  the  fundamental  prin 
ciple  of  the  plenary  character  of  the  police  power;   Kidd 
vs.    Pearson,    128    U.   S.,    I.      If  we   regard   the   sale   of 
liquors  in  prohibitory  States  in  the  original  package  as 
an  act  simply  of  interstate  commerce,  under  the  protec 
tion  of  the  General  Government,  we  at  once  embarrass 
the  prohibitory  State  in  the  exercise  of  its  police  power, 
and  yet  fail  to  restore  interstate  commerce.      Free  subse 
quent  sales  are  essential  to  uninterrupted  commerce.      If 
we  allow  one  State,   under  the  idea  of  interstate  com 
merce,  to  force  one  sale,  and  the  resistf ul  State  to  restrain 
all  subsequent  sales,  we  give  occasion  to  an  unfruitful  and 
exasperating  conflict  between  them.      Neither  interest  is 
adequately   protected.      There    is    no    harmony    in    our 
method.     In  the  case  of  oleomargarine,  the  court  seems 
to  have  accepted  the  more  consistent  principle;  Powell 
-vs.  Pennsylvania,  127  U.  S.,  678.     A  law  of  Pennsylvania 
which  forbade  the  having  in  possession  of  oleomargarine 
with  intent  to  sell,  was  pronounced  constitutional.     The 
language  is,  "  to  have  in  possession  with  intent  to  sell." 
This  makes  no  exception  in  favor  of  the  original  package. 
Under  the  later  rendering  of  the   liberty   of  sale   in 
original  packages,  Congress  came  to  the  relief  of  the  pro 
hibitory  States  in  the  Wilson  law,  which  forbids  importa 
tion  and  sale  in  States  that   reject   the   traffic.      Police 
regulations  have  so  much  of  the  native  quality  and  essen 
tial  substance  of  local  government  that  we  can  hardly 


i52  The  Growth  of  Nationality 

trespass  on  this  government  in  a  way  more  undesirable 
than  by  subjecting  the  regulations  of  one  State  to  those 
of  an  adjoining  State.  There  is  no  reason  why  the  free 
sales  of  one  State  should  be  transferred  to  another  State, 
any  more  than  there  is  a  reason  why  the  restrictions  of 
the  latter  State  should  be  imposed  upon  the  former  State. 
The  boundary  of  neither  State  should  be  invaded  by  the 
other.  That  is  the  simple  principle  of  perfect  comity  in 
self-government. 

§  13.  Most  judicial  questions  which  involve  any  fresh 
departure  in  economic  and  social  relations  are  likely  to 
reach  the  Supreme  Court  of  the  United  States.  The 
defences  of  the  Constitution  of  the  United  States  are 
brought  forward  and  set  up  against  the  new  principle  or 
the  new  application,  and  so  the  case  reaches  the  final 
tribunal.  It  thus  becomes  of  utmost  moment  that  this 
court  shall  not  only  have  a  firm  hold  of  judicial  ideas,  but 
also  shall  have  an  equally  clear  perception  of  the  modify 
ing  force  of  the  changing  and  progressive  social  states  that 
may  be  involved  in  the  inquiry.  The  first  without  the 
second  makes  the  court  the  organ  of  a  purblind  con 
servatism. 

A  good  illustration  of  this  double  necessity,  and  of  an 
unusual  expansion  of  governmental  supervision,  was  fur 
nished  by  the  case  of  Munn  vs.  Illinois,  94  U.  5.,  113. 
The  State  of  Illinois,  in  its  Constitution,  had  declared 
elevators  public  warehouses,  affected  by  a  public  use; 
and  had  placed  them  under  the  regulation  of  the  legis 
lature.  The  legislature  passed  an  act  requiring,  for  a 
certain  class  of  elevators,  a  license,  and  fixing  maximum 
charges.  Munn  and  Scott  owned  an  elevator  in  Chicago, 
and  carried  it  on  in  disregard  of  the  law.  They  took  out 
no  license  and  charged  rates  higher  than  the  legal  ones. 


Strife  between  Classes  153 

The  courts  of  Illinois  sustained  the  Constitution  and  the 
action  of  the  legislature  under  it.  The  case  was  carried 
to  the  Supreme  Court  of  the  United  States.  It  was 
urged  that  this  action  of  Illinois  was  in  disregard  of  the 
provisions  of  the  Constitution  of  the  United  States,  which 
gives  the  regulation  of  commerce  between  the  States  to 
Congress;  which  forbids  any  preference  of  the  ports  of 
one  State  over  those  of  another;  and  which  forbids  any 
State  to  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law. 

The  decision  of  the  Court  was  that,  under  the  powers 
inherent  in  every  sovereignty,  a  government  may  regu 
late  the  conduct  of  its  citizens  toward  each  other,  and, 
when  necessary  for  the  public  welfare,  the  manner  in 
which  one  shall  use  his  own  property. 

The  direction  in  which  this  power  was  in  this  case 
exercised  was  an  unusual  one,  and  was  staunchly  resisted 
by  Justice  Field,  sustained  by  Justice  Strong.  The  free 
dom  granted  under  previous  practice  to  individual  enter 
prise  availed  more  with  him  than  the  stress,  under  new 
circumstances,  of  a  public  necessity.  Justice  Field  re 
garded  the  decision  as  breaking  down  a  well  established 
defence  of  personal  liberty.  He  attached  no  importance  to 
the  declaration  of  the  Constitution  of  the  State  that  this 
form  of  business  was  to  be  regarded  as  affected  by  a  public 
use.  Long  judicial  usage  had  settled  the  nature  of  these 
economic  transactions,  quite  beyond  the  affirmation  or 
denial  of  any  body  of  men.  He  did  not  regard  it  as 
within  the  competency  of  a  State  to  fix  the  compensation 
which  an  individual  may  charge  for  the  use  of  his  own 
property  in  his  private  business,  and  for  his  services  in 
connection  with  it.  Such  action  was  a  blow,  not  simply 
at  the  obligation  of  contracts,  but  at  the  liberty  of  con- 


154  The  Growth  of  Nationality 

tract.  The  conditions  under  which  this  was  being  done 
were  not  those  settled  by  long-established  usage,  resting 
on  special  relations.  He  thus  cast  himself  back  on  cur 
rent  economic  ideas  as  opposed  to  any  new  social  claims. 
The  decision  of  the  Court  in  this  case  was  a  fruitful  one, 
preparing  the  way  for  a  freer  exercise  of  the  sovereignty 
of  the  State.  It  refused  to  bind  the  State  by  specified 
exceptions  and  a  closely  denned  equivalence  of  circum 
stances.  It  left  it  to  act  under  a  parity  of  reasons  in 
view  of  the  public  welfare.  Any  other  view  converts 
elastic  ties  into  inflexible  ligatures.  In  its  unprogressive 
temper  lies  the  danger  of  the  judicial  mind.  Elevators 
in  large  commercial  centres  acquire,  by  virtue  of  position, 
much  of  the  advantage  of  a  natural  monopoly.  This 
power  may  readily  be  strengthened  by  combination. 
The  charges  made  under  these  conditions  may  affect  not 
only  the  persons  subject  to  them,  but  may  extend,  in 
their  influence,  to  the  entire  community.  The  possibility 
of  commerce  and  the  value  of  commerce  are  involved. 
Even  if  the  distinction  between  this  line  of  business  and 
other  lines  of  business  is  one  of  degree  simply,  yet  the 
difference  in  degree  is  conspicuous  enough  to  become  the 
ground  of  diverse  treatment.  Certainly  the  new  principle 
brings  some  doubt  to  business  relations,  and  admits  of  a 
tyrannical  application,  but  the  old  principle  is  here  and 
now  responsible  for  a  grave  evil.  Nor  can  we  expect  to 
meet  changing  circumstances  without  encountering  the 
danger  of  mistaken  legislation,  a  danger  certainly  not 
greater  than  that  of  stubbornness  and  non-adaptation. 
The  new  issue  is  to  be  met  with  modified  action.  Be 
tween  the  two  interests  involved — the  collective  welfare 
guarded  by  the  sovereignty  of  the  State,  and  the  in 
dividual  liberty  included  within  it — the  former  must 


Strife  between  Classes  155 

receive  the  first  attention.  The  latter  stands  not  for  the 
ultimate  end,  but  for  the  unoccupied  areas  left  in  secur 
ing  that  end.  The  State  is  not  an  aggregate  of  individual 
activities,  but  of  these  activities  harmonized  with  each 
and  made  organic. 

§  14.  The  kind  of  charter  which  at  one  time  threatened 
the  "gravest  danger  to  the  community  was  that  of  rail 
roads.  In  the  beginning,  the  several  communities  and 
States  were  only  too  anxious  to  secure  railroads.  They 
were  ready  to  grant  them  every  privilege  and  to  render 
them  unstinted  aid.  Railroading  was  a  new  experience. 
The  people  and  the  corporation  entered  upon  it  with  no 
adequate  sense  of  its  importance,  of  the  extent  to  which 
it  was  to  determine,  not  only  the  general  conditions  of 
commerce,  but  of  our  productive  life;  or  of  the  startling 
license  it  was  to  give  to  the  individual;  or  of  the  restraint 
that  it  was  to  call  for  in  behalf  of  the  public  welfare. 
The  people  were  not  awake  to  the  immense  power  they 
were  conferring.  They  did  not  understand  their  own 
action  till  they  began  to  experience  the  great  abuses  that 
flowed  from  it.  This  inconvenience  of  a  contract  whose 
obligations  were  constantly  coming  in  question  and  which 
was  liable  to  put  upon  the  State  unexpected  and  incon 
venient  restraints  in  its  sovereign  function  of  supervision, 
led  the  Legislature  of  Massachusetts  to  pass  a  general  law 
that  all  charters  should  be  subject  to  amendment,  altera 
tion,  and  repeal.1 

The  controversy  with  railroads  was  brought  to  an  issue 
by  laws  passed  in  Iowa  and  Wisconsin  regulating  rates. 
In  the  cases,  Chicago,  Burlington  &  Quincy  Railroad  vs. 
Iowa,  94  U.  S.,  155;  Peck  vs.  Chicago  &  Northwestern 
Railroad,  94  U.  S.,  164;  Winona  &  St.  Peters  Railroad 

1  Miller's  Lectures  on  the  Constitution,  p.  536. 


i56  The  Growth  of  Nationality 

vs.  Blake,  94  U.  S.,  180,  it  was  decided  that  railroads  are 
subject  to  control  as  to  their  rates,  unless  they  are  pro 
tected  by  explicit  agreement  in  their  charters.  In  the 
Railroad  Commission  Cases,  Stone  vs.  Farmers'  Loan  and 
Trust  Company,  116  U.  S.,  307;  Stone  and  others  vs. 
The  Illinois  Central  Railroad,  116  U.  S.,  347;  Stone  and 
others  vs.  New  Orleans  &  Northwestern  Railroad,  116 
U.  S.,  352,  it  was  accepted  as  the  settled  doctrine  of  the 
court  that  a  State  has  power  to  limit  the  amount  of 
charges  by  railway  companies.  This  power,  if  it  can  be 
bargained  away  at  all,  can  only  be  lost  by  words  of  posi 
tive  grant.  The  grant  of  the  power  to  a  railway  com 
pany  to  establish  rates  does  not  deprive  the  State  of  its 
power  to  alter  them. 

§  15.  The  struggle  between  classes  in  the  United 
States  has  arisen  chiefly  from  a  sense  of  unfairness  in  the 
formation  and  administration  of  law,  an  unfairness  re 
sulting  in  very  unequal  opportunities,  and  in  dividing 
lines  passed  with  more  and  more  difficulty.  The  doctrine 
of  individualism,  so  fundamental  with  us  in  our  social, 
civil,  and  economic  convictions,  uncorrected  by  collectiv 
ism,  has  resulted  in  a  growing  mastery  by  the  few  of  the 
advantages  which  the  people  rightly  look  upon  as  their 
common  inheritance.  A  sense  of  injury,  oftentimes 
vague  and  ill-directed,  has  sprung  up  which  tends  to 
retard  national  development  and  to  weaken  the  ties  by 
which  classes  are  knit  together  in  one  organic  whole. 
The  management  of  railways  has  played  a  prominent 
part  in  this  growing  controversy  between  the  many  and 
the  few.  Railways  are  in  possession  of  a  public  franchise ; 
they  have  received  much  aid  from  the  people;  they  in 
herit  the  rights  and  duties  of  public  carriers ;  their  service 
frequently  involves  a  monopoly,  while  upon  its  efficiency 


Strife  between  Classes  157 

and  fairness  the  general  prosperity  largely  depends. 
These  circumstances  make  this  branch  of  business  pecu 
liarly  critical  and  responsible,  affected  in  every  part  of  it 
with  a  public  use.  As  a  matter  of  fact,  no  business  has 
been  handled  with  more  license,  or  has  given  more  un 
restricted  range  to  the  irresponsible  enterprise  of  in 
dividuals.  It  has  evoked  financial  genius,  yet  a  genius 
that  has  preyed  upon  the  public.  Stockholders  and  the 
people  alike  have  fallen  into  the  hands  of  managers  who 
have  made  all  interests  submit  to  their  own  ends.  In 
place  of  a  fair,  extended,  and  harmonious  service  rendered 
by  the  roads  in  their  relation  to  each  other,  we  have  had 
ruinous  competition  and  every  form  of  unjust  discrimina 
tion.  When  combination  has  been  achieved  it  has  had 
no  permanent  basis,  no  adequate  recognition  of  all  the 
interests  involved,  and  no  sufficient  means  of  needful 
readjustments.  It  would  hardly  be  possible  to  find  an 
example  in  any  other  branch  of  business  of  like  impor 
tance  in  which  the  management  had  been  of  so  haphazard 
and  changeable  a  character,  with  such  extended  losses  to 
individuals  and  to  the  public,  as  the  handling  of  railways 
in  the  United  States.  Speculation  has  been  set  no  limits. 
Large  fortunes  have  been  gathered  out  of  public  losses ; 
unequal  terms  have  been  given  to  the  various  lines  of 
business;  single  enterprises,  like  the  Standard  Oil  Com 
pany,  have  been  built  up,  with  enormous  powers  exercised 
alike  against  economic  and  social  law.  A  struggle,  there 
fore,  for  the  correction  of  these  evils  which  had  grown  up 
under  the  customary  forms  of  business  and  the  ordinary 
administration  of  law,  became  inevitable.  The  success 
of  that  effort  is  a  matter  of  national  interest  and  national 
development  in  settling  the  relation  of  classes  to  each 
other. 


158  The  Growth  of  Nationality 

§  16.  The  Interstate  Commerce  Law  and  the  Inter 
state  Commerce  Commission  afford  an  example  of  the 
way  in  which  evils  affecting  widely  the  common  terms 
of  life  have  grown  up,  and  of  the  painful  and  inadequate 
correction  we  have  so  far  brought  to  them.  Though  in 
terstate  commerce  is  placed  by  the  Constitution  under 
the  control  of  Congress,  little  had  been  done  prior  to  the 
Act  of  1887  in  the  exercise  of  that  power,  beyond  a  par 
tial  repression  of  the  encroachments  of  the  States  on  each 
other.  The  growth  of  railways  in  the  United  States  has 
been  a  most  active  interplay  of  enterprise  and  accident, 
an  example  of  undertakings  involving  wide  interests  left 
to  submit  themselves  to  narrow  personal  impulses.  Rail 
roads,  when  they  came  to  supplement  water  carriage  and 
to  displace  other  forms  of  transfer,  became  at  once,  and 
in  an  unusual  degree,  a  primary  condition  of  prosperous 
production  and  trade.  Ease,  adequacy,  and  fairness  in 
railroad  traffic  are  the  common  grounds  of  prosperity. 
We  congratulate  ourselves  on  the  multiplication  of  rail 
roads,  on  the  low  rates  of  transfer,  and  on  the  striking 
development  of  individual  enterprise  in  connection  with 
them.  In  our  satisfaction  over  this  achievement  we 
easily  overlook  the  immense  losses  which  have  accom 
panied  these  gains.  Never  was  a  people  more  tolerant 
of  failure.  We  listen  to  the  congratulations  of  the  suc 
cessful  and  pay  little  heed  to  the  lament  of  the  more 
numerous  class  of  the  unfortunate.  We  overlook  the 
unfavorable  social  changes  which  have  accompanied  this 
development  of  personal  power,  and  the  disturbance  and 
waste  it  has  brought  to  those  sober,  moderate  methods 
which  characterize  the  bulk  of  the  nation.  The  inter 
ests  of  stockholders  have  been  the  plaything  of  adroit 
and  unscrupulous  management.  Railroads,  instead  of 


Strife  between  Classes  159 

being  built  in  wise  extension  of  each  other  and  in  strict 
subservience  to  public  wants,  have  expended  a  large  part 
of  their  strength  in  anticipating,  embarrassing,  and  weak 
ening  each  other.  Indeed,  under  the  inapplicable  notion 
of  competition,  we  have  regarded  this  wasteful  conflict  as 
a  primary  protection  of  the  people,  and  when  the  roads 
themselves,  weary  of  ruinous  and  fruitless  strife,  have 
been  inclined  to  suspend  it  by  an  agreement,  we  have 
been  disposed  to  force  them  back  into  contention. 

Foresight  in  the  construction  of  roads,  the  establish 
ment  of  fitting  relations  between  them,  the  assignment 
to  each  of  its  proper  share  in  the  common  service,  that 
settlement  of  connections  and  of  rates  by  which  each  road 
contributes  the  most  possible  to  the  common  prosperity 
and  receives  the  most  possible  from  it,  have  all  been  left 
to  divided,  capricious,  individual  enterprise,  keeping  in 
the  foreground  the  immediate  gain  of  the  management. 
Sober  and  wide  judgment,  collective  counsel,  — where  this 
counsel  is  most  needed — the  public  welfare,  have  given 
way  to  a  personal  activity  which  has  become  a  usurpation 
of  power  and  an  abuse  of  privilege. 

By  far  the  worst  evil  of  this  rapid,  yet  unregulated, 
development  has  been  the  degree  in  which  it  has  set 
aside  the  common,  open  terms  of  business,  and  perverted 
its  methods.  Equality  of  treatment  by  the  railroads, 
open  terms  of  transfer,  and  a  faithful  response  to  the 
duties  of  a  common  carrier  are  essential  in  harmonizing 
the  interests  of  person  with  person,  class  with  class,  com 
munity  with  community;  in  making  the  industries  of  the 
country  universally  successful,  and  in  putting  them  in 
prosperous,  yet  peaceful,  interplay  with  each  other. 
Much  store  as  we  may  set  by  individual  enterprise,  it 
loses  much  of  its  value  when  it  is  largely  occupied  in 


160  The  Growth  of  Nationality 

making  sterile  the  labors  of  others.  In  no  way  does 
tyranny  more  rapidly  extend  and  mature  itself  than 
when  the  common  terms  and  conditions  of  prosperity  are 
left  a  prey  to  the  few.  Thoroughly  as  we  may  disbelieve 
in  socialism,  nothing  throws  us  back  upon  it  with  more 
force  than  the  perversion  of  individualism. 

In  the  beginning,  all  parts  of  the  country,  feeling  the 
absolute  need  of  railroads,  and  having  as  yet  no  experi 
ence  of  their  danger,  were  glad  to  concede  to  them  every 
privilege  and  render  them  all  possible  aid.  Few  felt  the 
need  of  restrictions  or  had  the  foresight  or  the  courage  to 
urge  them.  All  were  eager  in  the  effort  for  the  immediate 
extension  of  communication,  confident  that  all  other  in 
terests  were  involved  in  it,  and  would  be  readily  developed 
out  of  it.  Our  errors  are  not  to  be  charged  on  any  one 
class.  Our  mistakes  were  a  part  of  a  development,  a  de 
velopment  that  called  out  the  agents  through  whom  they 
were  made.  The  enterprising  manager  became  the  un 
scrupulous  manager,  and  laid  hold  of  his  opportunity  as 
it  grew  under  his  hand. 

§  17.  By  virtue  of  competition,  which  we  had  been 
trained  to  look  upon  as  the  most  comprehensive  and 
beneficent  economic  law,  and  which  we  had  distended  by 
arts  and  tricks  not  of  its  own  substance,  every  man  in  his 
business  relations  was  matched  with  his  fellow,  and  tugged 
and  strained  in  all  ways  to  fling  his  adversary  as  the  only 
condition  on  which  he  himself  could  keep  his  feet.  To 
this  blind  strife  the  railroads  lent  themselves  in  a  very 
extraordinary  way.  Any  considerable  difference  in  rates 
is  sufficient  to  settle  the  success  or  failure  of  many  under 
takings.  Secret  rates,  rebates,  overweight,  underbilling, 
change  in  classification,  free  storage,  and  various  favors 
were  the  means  employed  to  aid  one  and  embarrass 


Strife  between  Classes  161 

another  in  his  calling.  A  man's  business  perished  in  his 
hands  through  influences  over  which  he  had  no  control, 
and  of  which  he  might  be  ignorant.  His  remedy,  if 
remedy  he  had,  lay  not  in  a  tedious  and  ruinous  appeal 
to  the  courts,  but  in  himself  resorting  at  once  to  the 
same  fraudulent  methods.  The  railroads,  having  once 
abandoned  their  duties  as  public  carriers,  and  entered  on 
the  sale  of  their  services  to  the  highest  bidder,  found 
themselves  driven  forward  into  ways  ever  more  unjustifi 
able  and  unprofitable.  They  became  servants  rather 
than  masters,  and  were  involved  in  endless  discrimina 
tions  which  were  subject  to  no  law,  led  to  no  goal,  were 
attended  with  great  losses,  and  scattered  mischief  in  all 
directions.  The  most  well-known  product  of  this  purely 
personal  policy  has  been  the  Standard  Oil  Company,  a 
monopoly  that  has  been  built  up  at  the  sacrifice  of  the 
common  conditions  of  commercial  activity,  social  well- 
being,  and  civic  right.  It  stands  forth  a  gigantic  aggre 
gate  of  every  commercial  evil  which  a  free  people,  growing 
into  national  strength,  ought  to  reject. 

It  was  this  wide-spread  mischief  and  universal  confusion 
that  had  grown  up  under  our  ordinary  political  and  judi 
cial  procedure,  which  the  law  of  1887  strove  to  arrest. 
Immediate  and  adequate  correction  was  beyond  the 
power  of  man.  All  that  was  possible  was  a  tentative 
effort  which  should  slowly  disclose  the  nature  of  the 
problem  and  lead  to  its  solution. 

§  1 8.  The  chief  purposes  of  the  law  were  to  correct 
excessive  charges,  unjust  discriminations  between  differ 
ent  forms  of  traffic,  between  persons  and  between  places, 
to  facilitate  the  interchange  of  goods  and  passengers  be 
tween  different  lines,  to  make  each  passage  continuous 
from  its  commencement  to  its  termination,  to  prevent 


1 62  The  Growth  of  Nationality 

the  charge  of  heavier  rates  for  shorter  distances  on  the 
same  line,  to  stop  the  pooling  of  rates,  to  secure  the  pub 
lication  of  rates  and  changes  in  rates,  to  bring  all  traffic 
under  the  observation  and  correction  of  the  Commission. 
Of  these  purposes,  the  most  immediately  important  were 
the  publicity  and  uniformity  of  rates.  After  these  came 
the  prevention  of  any  excess  in  rates.  The  three  funda 
mental  demands  in  successful  transportation  are  publicity 
of  rates,  uniformity  of  rates,  and  moderation  of  rates. 
The  further  requisitions  find  their  value  in  their  relation 
to  one  or  other  of  these  three. 

A  prohibition  of  a  heavier  charge  for  a  shorter  haul  on 
the  same  line  in  the  same  direction,  and  the  forbidding 
of  pooling,  both  of  which  were  prominent  in  the  public 
mind,  bear,  in  the  statute  and  in  the  action  of  the  Com 
mission,  upon  these  same  points  of  equality  and  modera 
tion  of  charges.  Both  prohibitions  are  justified,  so  far  as 
they  are  justified,  by  their  relation  to  these  primary  ideas 
of  reasonable  charges,  well  understood  and  fairly  appor 
tioned  between  shippers.  The  public  has  been  chiefly 
afraid  of  pooling  because  of  its  overestimate  of  the 
doctrine  of  competition,  and  because  it  seems  to  be  the 
most  direct  means  to  extortionate  charges.  As  pooling 
always  may  be,  and  often  has  been,  the  most  direct  means 
to  suitable  and  uniform  freights,  if  it  had  been  allowed, 
under  the  discretion  of  the  Commission,  the  problem 
would  have  been  much  simplified.  The  prohibition  of 
pooling,  as  an  explicit  and  fitting  agreement,  has  often 
thrown  railroads  back  on  those  secret  rates  which  have 
been  the  most  difficult  evil  of  correction  in  the  entire  prob 
lem.  In  the  same  way  the  anti-trust  law  has  compelled  the 
courts  to  dissolve  traffic  associations  which  held  the  germs 
of  better  things.  No  kind  of  action  is  more  dependent 


Strife  between  Classes  163 

for  its  success  on  wise  and  concurrent  methods  than  that 
of  railroads.  To  perpetually  throw  them  back  on  in 
dividual  effort  is  to  crush  the  crystal  in  the  process  of  its 
formation. 

The  principle  involved  in  the  longer  and  shorter  haul 
has  been  applied  by  the  Commission  in  a  conservative 
way,  and  in  most  cases  has  justified  itself.     It  is  a  rule 
less  flexible  than  the  facts  would  seem  to  demand,  but  it 
lies  so  thoroughly   in  the  right  direction  that  even  its 
arbitrary  application  is  safer  than  its  neglect.     The  courts 
have  been  inclined  to  accept  with  less  rigor  than  the  Com 
mission  the  circumstances  which  justify  its  suspension. 
Those  whose  primary  purpose  it  is  to  compare  extendedly 
a  large  and  varied  class  of  wrongs,  and  to  apply  the 
remedy  in  a  manner  the  safest  for  them  all,  are  likely  to 
adhere  more  rigidly  to  a  general  rule  than  those  whose 
immediate  duty  it  is  to  dispose  satisfactorily  of  a  single 
case.     The  methods  of  the  Commission,  taken  as  a  whole, 
have  served  to  emphasize  the  law  in  this  particular  rather 
than  to  weaken  it.     To  express  even  approximately  the 
natural  advantages  and  disadvantages  of  each  place  in 
the  freights  conceded  it,  to  leave  each  in  secure  posses 
sion  of  its  own,  with  no  trespass  on  its  neighbor,   is  a 
work   of   utmost   difficulty   and  will   frequently   involve 
some  stubborn  adherence  to  the  rule,  lest  all  directing 
power  be  lost  in  the  infinite  variety  and  confusion  of  the 
circumstances.      Differences  between  two   places  which 
arise  from  water-carriage,  the  one  possessed  of  such  car 
riage  and  the  other  lacking  it,  have  received  more  con 
sideration  than  differences  arising  from  the  presence  of 
competing  railroads.     This  would  seem  to  be  just.     The 
railroads  have  hardly  a  right  to  create  differences   and 
then  urge  these  same  differences  as  a  ground  of  discrim- 


1 64  The  Growth  of  Nationality 

ination.  A  port,  by  virtue  of  a  natural  advantage,  may 
demand  and  secure  a  reduction  of  rates  on  a  railroad  com 
peting  with  its  water-carriage;  but  a  place  that  is  served 
by  several  competing  railroads  owes  its  power  of  reducing 
freights  to  the  railroads  themselves,  and  it  is  the  abuse 
of  this  power  which  is  the  evil  to  be  guarded  against.  It 
is  felt  to  be  neither  just  nor  wise  to  allow  the  productive 
power  of  different  localities  to  be  determined  by  the 
capricious  management  of  railroads.  Greatly  enhancing, 
as  they  necessarily  do,  the  commercial  opportunities  of 
certain  terminals,  they  may  well  be  restrained  from  in 
flicting,  by  heavy  rates,  still  further  injury  on  way 
stations.  This  is  a  line  of  reasoning  which  railroads 
have  been  slow  to  accept.  They  have  not  understood 
how  composite  and  how  comprehensive  a  true  commercial 
prosperity  must  be,  how  the  complete  success  of  any 
portion  of  it  must  ultimately  depend  on  the  highest  suc 
cess  of  every  portion  of  it.  They  plead  as  a  merit  that 
they  have  built  up  by  their  concessions  this  place  or  this 
line  of  business.  They  may  have  done  so,  yet  much  of 
the  apparent  prosperity  they  have  occasioned  may  have 
simply  been  a  transfer  from  person  to  person,  or  from 
locality  to  locality,  of  advantages  that  might  more  desir 
ably  have  tarried  at  home.  Readjustments  must  be 
judged  as  much  by  what  they  pull  down  as  by  what  they 
build  up.  An  aggregation  of  interests  is  not  a  creation 
of  interests. 

We  have  in  railroad  traffic  a  repetition  of  the  fallacies 
of  protection.  The  shifting  of  wealth  is  not  only  not  the 
creation  of  wealth,  it  delays,  and  may  much  embarrass, 
that  creation.  A  change  of  railroad  facilities  is  to  busi 
ness  what  a  readjustment  of  levels  is  to  water.  In  each 
case  it  gathers  at  different  centres,  but  in  each  case  there 


Strife  between  Classes  165 

are  areas  of  loss  as  well  as  areas  of  gain.  At  few  points 
do  we  more  need  an  accumulated  experience,  stored  at 
one  ruling  centre,  than  in  this  very  matter  of  so  adjusting 
natural  and  acquired  advantages  to  each  other  through 
the  entire  nation  that  they  shall  most  completely  and 
permanently  sustain  each  other. 

§  19.  A  great  purpose  of  the  Interstate  Commerce 
Commission  is  to  secure  and  apply  this  experience.  The 
mistakes  incident  to  this  process  are  trifling  compared 
with  its  ultimate  gains.  We  shall  best  understand  the 
successes  and  failures  of  the  Commission  by  keeping  in 
view  these  three  desiderata:  publicity,  uniformity,  and 
moderation  of  charges.  The  easiest  to  secure  of  the 
three,  as  well  as  the  most  necessary,  would  seem  to  be 
publicity.  As  a  matter  of  fact  this  has  not  been  found 
to  be  the  case.  Secrecy  is  so  essential  to  all  the  diversity 
of  rates  sheltered  under  it,  that  it  is  sure  to  remain,  no 
matter  how  often  it  may  shift  its  method  of  concealment, 
as  long  as  there  is  any  unfairness  to  be  covered  up. 

At  the  time  of  the  formation  of  the  Commission,  any 
sense  of  responsibility  to  the  public,  any  need  of  covering 
the  whole  field  of  transportation  with  concurrent  methods, 
any  feeling  that  a  great  franchise  had  been  conferred 
which  was  to  be  administered  in  the  interest  of  those 
who  had  conceded  it,  had  passed  into  the  background. 
This  seems  more  surprising  when  we  contrast  the  acci 
dental  and  irresponsible  ways  of  our  railroads  with  the 
wide  counsel  and  constant  caution  which  characterize 
the  administration  of  continental  roads,  especially  those 
of  Germany.  An  individualism  that  accepted  no  re 
straints  but  those  of  immediate  personal  interest,  and 
often  interpreted  these  in  so  narrow  a  way  as  to  baffle 
the  too  eager  management  in  their  pursuit ;  an  individual- 


1 66  The  Growth  of  Nationality 

ism  disguised  as  business  enterprise  and  free  competition, 
with  none  of  the  dignity  or  sobriety  of  a  public  service, 
ruled  everywhere.  Those  least  wise  or  least  scrupulous 
in  their  management  gave  the  terms  which  those  more 
just  or  more  circumspect  found  themselves  compelled  to 
accept.  Public  spirit  and  personal  honor  largely  disap 
peared,  as  not  consistent  with  the  circumstances  which 
govern  transportation  and  which  could  not  be  changed 
by  the  action  of  any  single  person  or  company. 

Not  only  were  all  the  ordinary  methods  of  conceal 
ment,  special  rates,  rebates,  in  full  operation  ;  little  confi 
dence  was  felt  in  an  explicit  agreement  between  roads, 
and  was  not  infrequently  used  as  a  cloak  for  further  de 
ception.  When  the  pressure  of  the  Commission  began 
to  be  felt,  unusual  methods  were  devised  to  favor  par 
ticular  shippers.  Bits  of  road  were  owned  by  them,  and 
they  were  thus  admitted  into  a  disproportionate  share  of 
the  common  earnings.  Free  cartage  and  storage  were 
allowed.  Unequal  terms — the  essential  feature  of  the 
old  methods — were  in  one  way  or  another  restored,  and 
the  Commission  found  itself  confronted  by  an  evil  that 
disappeared  at  one  point  only  to  reappear  at  another. 
The  mischief  declared  itself  and  at  the  same  time  defied 
the  remedies  applied  to  it. 

While  the  better  portion  of  railroad  managers  favored 
the  Commission,  and  rendered  it  much  assistance,  espe 
cially  in  devising  a  uniform  method  of  accounts,  which 
served  to  make  the  statements  of  the  several  roads  more 
accurate  in  themselves,  more  apprehensible,  and  more 
capable  of  comparison,  these  helps  lost  much  of  their 
value  by  a  constant  relapse  on  the  part  of  managers  into 
evil  ways  that  seemed  forced  upon  them  by  the  criminal 
evasions  of  the  less  responsible  roads. 


Strife  between  Classes  167 

Notronly  was  the  field  which  all  accepted  as  that  of  the 
Commission  never  brought  into  complete  subjection ; 
much  that  properly  belonged  to  that  field  was  excluded 
from  it.  Water-carriage,  that  often  gave  controlling 
terms  to  railway  freights,  proceeded  on  its  way  without 
constraint.  Express  companies  and  car  companies,  in 
extricably  involved  in  interstate  commerce,  were  left  to 
their  own  devices.  Roads  lying  wholly  within  a  single 
State  claimed  exemption  from  the  authority  of  the  Com 
mission,  though  they  necessarily  took  part,  in  a  greater  or 
less  degree,  in  interstate  commerce. 

§  20.  The  Commission  has  been  conservative  in  its 
administration.  This  policy  is  wise  in  itself,  and  was 
made  necessary  in  the  outset  by  the  multiplicity  and 
variety  of  the  facts  before  it,  by  the  lack  of  any  accumu 
lated  experience  as  to  the  best  method  of  handling  them, 
by  the  great  division  of  opinion  among  those  whose  in 
terests  were  involved,  by  the  perplexed  way  in  which 
justifiable  and  unjustifiable  transactions  were  interlaced, 
by  the  wide  influence  of  those  to  be  censured  and  con 
strained,  and  by  the  want  of  any  clear  public  opinion, 
vigorous  moral  sanction,  ready  to  support  the  principles 
which  should  be  advanced.  The  right  method  was  to  be 
eliminated;  the  concessions  and  changes  of  method  it 
called  for  were  to  be  made,  if  not  convenient,  at  least 
possible.  The  commissioners,  the  managers  of  railway 
traffic,  and  the  public  were  to  be  educated  into  one 
concurrent  apprehension  of  existing  evils  and  of  their 
remedies. 

The  Commission  carefully  avoided  taking  the  position 
of  a  committee  whose  primary  function  was  the  detection 
of  the  evasions  of  the  organizing  act  or  of  existing  laws, 
and  the  punishment  of  these  offences  by  ordinary  pro- 


1 68  The  Growth  of  Nationality 

cesses.  The  act  itself  was  as  yet  too  little  understood, 
too  incomplete,  too  insufficiently  sustained  by  convenient 
and  sound  methods,  to  render  an  effort  at  rigid  enforce 
ment  either  feasible  or  desirable.  The  Commission 
claimed  for  itself,  and  hoped  to  win  by  slow  stages,  a 
truly  administrative  position.  It  was  to  become  the 
great  centre  at  which  all  the  complex  facts  bearing  on 
interstate  traffic  were  to  be  gathered,  to  be  made  capable 
of  easy  and  exhaustive  consideration,  and  to  be  safely 
converted  into  rules  of  action.  The  principles  involved 
in  these  complicated  phenomena,  at  once  like  and  unlike 
each  other,  were  to  be  sought  out,  and  a  policy,  pliable, 
yet  proximately  uniform,  was  to  be  shaped  and  grow  into 
authority.  The  Commission  has  felt  that,  as  an  adminis 
trative  body  representing  the  entire  community,  it  should 
so  far  have  the  initiative  as  to  make  its  action  authorita 
tive,  subject  only  to  the  correction  of  the  courts  under  a 
definite  complaint  of  injury  suffered.  It  was  a  question 
of  establishing  more  adequate  and  flexible  methods,  or  of 
working  exclusively  under  those  which  had  already  failed, 
and  were  sure  to  fail  again. 

§  21.  The  good  which  the  Commission  has  accom 
plished  has  lain  chiefly  along  this  line.  The  facts  per 
taining  to  railroad  traffic  have  been  spread  out  with 
greater  fulness  than  ever  before,  and  been  put  in  acces 
sible  forms.  Much  valuable  experience  has  been  accumu 
lated.  The  proper  lines  of  advance  have  become  visible. 
Much  favoring  sentiment  has  been  created. 

At  length  a  critical  point  has  been  reached.  An  op 
position,  based  on  extreme  individualism,  profiting  by 
existing  confusion  and  wishing  to  retain  it,  stands  in 
vigorous  rejection  of  further  progress.  It  is  not  easy  so 
to  arouse  and  instruct  the  public  mind  as  to  win  from 


Strife  between  Classes  169 

Congress  the  needful  expansion  and  completion  of  the 
organizing  act.  Our  inbred  jealousy  of  authority,  no 
matter  how  needful  that  authority  may  be,  is  telling 
against  the  completion  of  the  work  of  the  Commission. 
A  radical  sentiment,  also,  which  is  satisfied  with  nothing 
but  a  public  ownership  of  railroads,  gives  little  support  to 
a  method  so  far  short  of  its  own  purpose,  though  it  is 
within  reach  and  promises  a  great  reduction  of  the  evils 
of  railroad  management.  It  is  easy  to  slip  back  from 
the  position  gained  and  lose  the  work  already  expended ; 
looking  on  the  entire  effort  as  ineffective  simply  because 
we  have  not  had  the  courage  and  persistency  to  com 
plete  it. 

The  upshot  of  the  movement  is  of  the  greatest  interest 
as  going  far  to  settle  the  relations  of  classes  to  each  other, 
and  to  make  possible  fair  terms  for  our  common  produc 
tive  and  commercial  life.  The  rank  growths  which  in  the 
last  thirty  years  have  sucked  up  our  commonwealth  and 
overshadowed  the  general  prosperity  have  struck  their 
roots  into  the  soil  of  secrecy,  discrimination,  and  appro 
priation  of  public  rights — methods  which  have  found 
their  grossest  expression  in  railroad  management.  We 
are  in  close  grapple  with  the  evil  of  public  resources 
turned  from  their  proper  purpose  at  this  point  of  the 
government  of  railways,  and  our  success  or  failure  in  the 
struggle  will  affect  for  a  long  time  our  adjustment  of 
social  interests  to  each  other.  Our  temper  and  our  skill 
are  both  in  question. 

§  22.  The  chief  success  of  the  Commission  to  the 
present  time,  1898,  has  been  a  better  apprehension  of 
the  conditions  under  which  its  future  efforts  should  be 
made.  Its  report  of  1897  contains  a  full  rehearsal  of  its 
recommendations,  recommendations  some  of  which  have 


i  ?o  The  Growth  of  Nationality 

been  made  many  times,  and  which  have  the  accumulated 
force  of  eleven  years'  experience.  The  Commission  has 
from  the  beginning  been  between  two  millstones:  the 
comparative  indifference  and  inertia  of  Congress,  respond 
ing  to  but  few  of  its  requests,  and  the  conservative  atti 
tude  of  the  courts,  lending  themselves  reluctantly  to  the 
new  measures.  The  theory  of  the  courts  has  been  that 
the  Commission  should  appeal  to  them  for  the  compul 
sory  processes  necessary  to  make  its  counsels  effective. 
This  dependence,  closely  construed,  has  tended  to  de 
stroy  its  administrative  power  and  to  make  it  a  body 
whose  recommendations  could  be  safely  neglected.  We 
are  to  bear  in  mind  that  all  the  confusion,  arbitrary  pro 
cedure,  and  injustice  of  railroad  management  have  grown 
up  under  the  courts;  that  the  ordinary  processes  of  law 
have  utterly  failed  to  anticipate  or  to  redress  these 
evils.  Abuses  notorious,  everywhere  present,  were  rarely 
brought  before  the  courts,  and  still  more  rarely  corrected 
by  litigation.  Shippers  and  managers  fought  out  their 
quarrels  as  best  they  could  among  themselves,  and  few 
indeed  resorted  to  the  courts  as  a  means  of  adjustment. 
Like  speculators  in  a  wheat  market,  or  gamblers  at  a 
gambling  table,  they  inflicted  and  suffered  losses  in 
silence.  The  law,  with  its  uncertainty,  cost,  and  delay, 
might  be  made  a  weapon  of  attack  in  the  hand  of  wealth, 
but  rarely  a  defence  for  the  weak  and  the  poor.  An  ap 
peal  on  their  part  to  the  law  was  only  the  completion  of 
ruin.  If  the  Commission  could  do  nothing  more  than 
take  up  afresh  this  disused  and  ineffective  weapon  of 
existing  law,  its  fate  was  sealed. 

Yet  this  method  was  constantly  forced  upon  it.  It 
found  the  greatest  difficulty  in  achieving  any  independent 
position  as  an  administrative  body  entrusted  with  a  deli- 


Strife  between  Classes  i/1 

rate  and  specific  duty.  The  difficulty  was  not  that  the 
results  of  its  rulings  were  open  to  the  correction  of  the 
courts,  but  that  these  rulings  were  a  dead  letter  till 
the  courts  gave  them  life.  This  weakness  became  more 
and  more  apparent  to  those  on  whom  the  law  was  in 
tended  to  be  a  restraint,  and  so  its  administration  was 
constantly  falling  into  that  contempt  which  had  been  the 
lot  of  the  ordinary  restraints  of  law.  It  was  to  little 
purpose  that  the  Commission  pointed  out  existing  evils 
when  it  lacked  the  power  to  bring  them  an  adequate 
remedy.  Those  who  were  disposed  to  yield  obedience  to 
the  new  policy  shortly  found  themselves  thrust  back  upon 
the  old  discriminating  methods,  because  the  better  prin 
ciple  lacked  enforcement.  On  the  other  hand,  those  who 
had  created  confusion  and  found  their  pleasure  and  profit 
in  it,  discovered  that  they  had  only  to  shift,  not  correct, 
their  practice. 

The  act  itself  was  necessarily  imperfect.  It  was  thrust 
into  too  large  and  obscure  a  field  to  meet  all  its  demands 
at  once.  Injunctions  that  were  thought  safe  and  desir 
able,  like  that  against  pooling,  served  as  embarrassments. 
If  these  contracts  between  railroads,  by  which  managers 
sought  protection  from  a  competition  ruinous  to  all  in 
volved  in  it,  were  forbidden,  they  could  the  more  justly 
demand  that  all  secret  rates  should  be  promptly  sup 
pressed.  The  Commission  was  made  a  kind  of  common 
conscience  in  railroad  management  when  much  of  that 
management  was  conscienceless.  Much  that  it  said  and 
did  was  merely  a  higher  law  without  the  force  of  fulfil 
ment  amid  the  confusion  of  existing  methods. 

§  23.  One  of  the  more  vexatious  difficulties  which  has 
come  to  the  Commission  has  been  its  inability  to  secure 
testimony.  The  subject  is  presented  in  the  Annual 


i72  The  Growth  of  Nationality 

Report  for  1895,  under  the  caption,  "  Hinderance  to  the 
Execution  and  Enforcement  of  the  Law,"  and  in  the  Re 
port  of  1896  under  the  caption,  "  The  Brown  Case. "  For 
the  larger  part  of  its  existence  this  embarrassment  has 
served  to  cripple  the  Commission.  The  Supreme  Court, 
in  the  case  of  Counselman  vs.  Hitchcock,  142  U.  S.,  547, 
in  1892,  decided  that  any  witness  was  excused  from 
testifying  before  the  Commission  when  his  testimony 
tended  to  incriminate  himself.  This  ruling  effectually 
cut  off  the  Commission  from  most  of  its  investigations 
into  secret  rates,  as  the  facts  were  unknown  except  to 
those  who  had  taken  part  in  them.  This  ruling  was 
made  though  the  86oth  section  of  the  Revised  Statutes 
affirmed  that  the  witness  was  not  to  be  excused  from 
testifying,  and  that  his  testimony  was  not  to  be  used 
against  him  in  any  criminal  proceeding.  Congress,  the 
next  year,  February  n,  1893,  passed  a  more  explicit  act, 
requiring  testimony  to  be  given,  but  providing  that  no 
person  so  testifying  shall  be  prosecuted  for  any  transac 
tion  concerning  which  he  may  give  evidence.  In  March, 
1896,  the  decision  in  the  Brown  case  was  rendered  by  the 
Supreme  Court,  upholding  the  decision  of  the  inferior 
court  as  constitutional,  and  affirming  that  the  witness  was 
bound  to  testify.  The  Annual  Report  of  1896  says: 

"  This  decision  seems  to  have  effectually  removed  the  em 
barrassments  hitherto  encountered  in  obtaining  the  testimony 
of  unwilling  witnesses  in  penal  cases,  while  under  it  and  the 
ruling  of  the  Supreme  Court  in  1894  in  the  Brimson  case, 
little  difficulty  is  now  experienced  in  securing  the  attendance 
and  testimony  of  such  witnesses  in  proceedings  before  the 
Commission." 

Yet  years  were  required  to  remove  so  simple  an  obstacle. 


Strife  between  Classes  1 73 

§  24.  A  second  embarrassment  in  the  action  of  the 
Commission  has  been  found  in  a  different  rendering  by 
the  courts  and  by  the  Commission  of  the  word  "  line  "  in 
the  short-haul  clause.  The  Commission  has  been  disposed 
to  construe  it  as  applying  to  roads  which  together  con 
stitute  a  complete  line,  though  they  might  be  under 
different  management.  The  Commission,  in  accordance 
with  the  purpose  of  the  act  and  the  public  want,  have 
wished  to  constrain  a  united  action  of  continuous  roads, 
and  a  formation  of  rates  subject  to  their  actual  relations 
to  traffic.  The  courts  were  disposed  to  respect  the  rights 
of  each  company,  and  to  limit  the  prohibition  of  the 
longer  and  shorter  haul  to  each  corporation  taken  sepa 
rately.  There  is  in  this  difference  of  opinion  an  instructive 
expression  of  the  temper  which  naturally  belongs  to  the 
courts,  on  the  one  hand,  and  to  the  Commission,  on  the 
other  hand.  The  courts  were  disposed  to  regard  as 
supreme  the  ordinary  property  rights  of  independent 
companies.  The  Commission  put  foremost  its  own  func 
tion,  the  harmonizing  of  the  action  of  public  carriers  with 
the  public  welfare. 

In  its  Annual  Report  for  1894,  on  the  I2th  page,  the 
Commission  very  pertinently  remarks  : 

"  That  provisions  intended  to  bring  about  general  inter 
change  of  traffic  with  connecting  lines  on  equal  terms,  and  to 
compel  the  prompt  forwarding  of  passengers  and  goods  at 
reasonable  rates,  have  been  found  so  weak  as  to  be  incapable 
of  forcing  a  railroad  company  to  haul  the  loaded  car  of  a  con 
necting  carrier  at  established  local  rates,  and  yet  can  success 
fully  be  invoked  by  a  railroad  company  to  restrain  its  employees 
from  obstructing,  or  in  any  way  interfering  with,  the  prompt 
forwarding  of  interstate  traffic  over  its  own  and  connecting 
lines,  is  a  condition  of  affairs  which  not  plain  people  alone, 


1 74  The  Growth  of  Nationality 

but  those  supposed  to  be  versed  in  the  law,  find  it  extremely 
difficult  to  understand." 


Here,  however,  the  courts  and  the  Commission  are 
coming  to  be  more  of  one  mind,  as  indicated  in  the  case 
of  the  Wrightsville  and  Tennille  Railroad,  given  in  the 
Report  of  1896  under  the  heading,  "  Discrimination  be 
tween  Connecting  Carriers." 

§  25.  The  action  of  the  courts  which  most  has  belittled 
the  work  of  the  Commission,  making  it  well-nigh  nuga 
tory,  has  been  the  entire  reopening  of  cases  carried  from 
the  Commission  to  the  courts.  New  evidence  has  been 
introduced  and  the  previous  work  of  the  Commission  has 
settled  nothing.  '  The  whole  work  of  the  Commission 
in  a  given  case,  however  careful  and  exhaustive,  and  its 
decisions,  however  just  and  salutary  in  the  public  interest, 
may  have  only  the  most  lame  and  impotent  conclusion."  1 

Carriers  have  thus  been  taught  that  the  Commission  is 
a  negligible  factor;  that  they  need  make  no  serious  and 
adequate  defence  before  it;  that  they  may  defer  their 
case  till  they  are  in  the  presence  of  the  court  with  whom 
its  decision  rests,  and  whose  principles  and  methods  of 
procedure  are  those  with  which  they  have  all  along  been 
familiar.  A  few  lessons  of  this  sort  are  sufficient  to  teach 
the  refractory  ones  that  they  have  little  occasion  for  obe 
dience  to  the  new  mandates,  or  ground  of  apprehending 
any  severe  rebuke  for  disobedience. 

The  true  theory  of  the  Commission  would  seem  to  be 
that  it  primarily  represents  the  legislative  branch ;  that 
it  has  a  certain  restricted  executive  power  entrusted  to  it, 
that  it  is  responsible  to  the  legislature  and  can  easily  be 
held  in  check  by  it,  that  its  commands,  in  the  direct  dis- 

1  Annual  Report  of  1895,  p.  12. 


Strife  between  Classes  175 

charge  of  its  duty,  are  as  ultimate  to  the  courts  as  those 
of  the  legislature  itself,  and  that  both  it  and  the  legisla 
ture  are,  through  the  action  of  the  courts,  under  the  re 
straints  of  constitutional  law.  Certainly  a  view  of  this 
sort  is  the  only  one  which  can  prepare  the  Commission 
for  the  discharge  of  its  important  and  difficult  work. 

'  The  experience  of  ten  years  has  demonstrated  the  necessity 
and  justice  of  such  an  act, — the  Interstate  Commerce  Act,— 
and  nearly  every  essential  feature  of  that  act  has  failed  of  exe 
cution.  There  is  to-day,  and  there  can  be  under  the  law  as 
now  interpreted,  no  effective  regulation  of  interstate  carriers." 
—Report  of  1897,  p.  37. 

The  delays  incident  to  this  absolute  dependence  of  the 
Commission  are  altogether  mischievous,  and  are  sufficient 
of  themselves  to  destroy  the  value  of  any  aid  granted  by 
the  courts.  '  The  average  duration  of  the  cases  which 
have  been  actually  prosecuted  for  the  enforcement  of  the 
orders  of  the  Commission  has  been  about  four  years."  l 
The  commands  of  the  Commission,  like  the  laws  of 
Congress  which  they  represent  and  complete,  should  take 
effect  at  once;  the  remedy  for  any  undue  extension  of 
jurisdiction  being  left,  as  in  all  other  cases,  to  the  courts. 
Even  then  the  movement  would  be  sufficiently  slow,  but 
an  injunction  that  is  compelled  to  run  the  gauntlet  of 
four  years'  litigation,  and  possible  legislation,  is  no  in 
junction — it  is  hardly  counsel.  The  promised  profits  of  four 
years  of  disobedience  would  quite  compensate  any  losses 
that  might  accrue  in  the  fifth  year.  Sufficient  unto  the 
day  are  the  evil  and  the  good  thereof. 

§  26.     The  Commission  in  the  Report  of  1897,  presents 

1  Report  of  1897,  p.  32. 


1 76  The  Growth  of  Nationality 

the  subject  fully  and  argues  it  convincingly.  It  states 
and  urges  elaborately  the  amendments  that  are  necessary 
to  rehabilitate  the  original  act,  riddled  and  ruined  by  the 
decisions  of  the  courts,  and  put  the  Commission  on  its 
feet.  It  is  not  true,  but  much  the  reverse  of  truth,  that 
the  courts  are  the  most  fitting  body  to  define  and  enforce 
the  terms  of  interstate  commerce.  They  are  accustomed 
simply  to  the  redress  of  wrongs,  not  to  laying  down  new 
lines  of  action  in  protection  of  the  public  welfare.  Vested 
rights,  so  called,  are  likely  to  receive  at  their  hands  undue 
attention  as  contrasted  with  public  interests  which  have 
not  yet  crystallized  into  distinct  and  defensible  claims. 
The  inherent  conservatism  of  judicial  principles  makes 
itself  painfully  felt  when  new  social  conditions  are  ap 
proached.  The  Commission,  on  the  other  hand,  in 
possession  of  a  wide  and  ever-growing  experience,  lays 
down  its  rules  of  action,  not  in  view  of  a  single  case  or 
class  of  cases,  but  in  view  of  the  entire  field ;  not  to  meet 
the  claims  of  particular  parties,  but  those  of  the  entire 
community.  This  is  well  illustrated  in  the  application  of 
the  fourth  section  of  the  act,  pertaining  to  the  longer  and 
shorter  haul.  The  Commission  has  insisted  that  com 
petition  between  railroads  simply  did  not  give  a  difference 
of  circumstances  which  entitled  a  company  to  make  dis 
criminations  of  rates  against  its  way  traffic  to  the  extent 
of  rendering  the  charges  on  it  greater  than  those  placed 
on  through  traffic.  In  the  Troy  case,  168  U.  S.,  144,  the 
courts  sanctioned  such  a  claim.  But  if  this  claim  for  dis 
crimination  is  just  on  the  part  of  the  carriers,  they  them 
selves  can  indefinitely  create  the  circumstances  under 
which  the  fourth  section  suffers  suspension ;  thus  the 
prohibition  is  made  void.  They  may  commit  a  second 
wrong  and  justify  it  by  an  earlier  one.  They  may  make 


Strife  between  Classes  177 

through  freights  unreasonably  low,  and  having  done  this, 
they  may  offer  it  as  a  ground  for  making  way  freights 
unreasonably  high. 

§  27.  The  partial  approximation  of  the  courts  and  the 
Commission  has  been  brought  abruptly  to  a  close  by 
some  recent  decisions.  In  the  case  of  the  Cincinnati, 
New  Orleans,  &  Texas  Pacific  Railway  Co.  vs.  Interstate 
Commerce  Commission,  162  U.  5.,  184,  it  was  decided 
that  the  Commission  had  not  been  invested  with  any 
power  to  determine  rates.  It  is  not  empowered  either 
expressly  or  by  implication  to  fix  rates  in  advance.  In 
the  case  of  the  Interstate  Commerce  Commission  vs.  Cin 
cinnati,  New  Orleans,  &  Texas  Pacific  Railway  Co., 
167  U.  5.,  479,  it:  was  held  "  that  the  Interstate  Com 
merce  Commission  had  no  power  to  prescribe  a  rate  for 
the  future,  and  that  its  power  in  passing  on  the  rea 
sonableness  or  unreasonableness  of  a  rate  was  entirely 
confined  to  determining  whether  the  rate  had  been  rea 
sonable  or  unreasonable  in  the  past."  ' 

Under  this  view,  the  Commission  has  scarcely  the 
semblance  of  a  function  left  it.  If  a  shipper  felt  himself 
aggrieved  by  unequal  or  excessive  rates,  and  wished  the 
remedy  of  the  law,  such  as  it  was,  the  courts  were  open  to 
him.  He  needed  no  Commission  to  intervene.  Now 
that  it  does  intervene,  its  investigations  have  no  authority. 
The  Commission,  under  the  ruling  of  the  courts,  though 
it  represents  the  highest  legislative  authority,  is  left  in 
the  very  presence  of  the  wrong  inflicted,  powerless  for  its 
removal.  The  most  it  can  do  is  to  give  moral  encourage 
ment  to  any  suffering  party  seeking  redress.  The  redress, 
when  obtained,  may  be  wholly  inadequate,  and  may  leave 
the  future  more  than  ever  embarrassed  by  the  resentments 

1  Report  of  1897,  p.  15. 


1 78  The  Growth  of  Nationality 

and  retaliations  called  out.  In  many  cases,  those  injured 
have  no  claims  which  they  can  prosecute.  In  most  cases, 
even  if  they  have  a  legal  claim,  it  is  unwise  for  them  to 
push  it ;  nor  are  they  willing  to  push  it.  If,  in  rare  cases, 
the  claim  is  carried  to  a  successful  issue,  the  general  cor 
rection  sought  for  by  the  act  is  not  secured.  No  more 
striking  example  could  well  be  given  of  adjudication 
which  eats  the  heart  out  of  the  law  it  is  called  on  to 
expound. 

The  Report  of  the  Commission  for  1897 — the  same  can 
now  be  said  of  the  Report  for  1898 — is  a  very  important 
document,  as  it  sums  up  the  experience  of  eleven  years, 
and  presents  fully  the  stage  of  helplessness  into  which 
the  remedy  for  secret,  unequal,  and  unjust  rates  has  now 
fallen.  The  confused  claims  which  now  lie,  under  the 
Interstate  Commerce  Act,  between  the  public,  Congress, 
the  Commission,  and  the  courts,  must  be  brought  to 
some  immediate  and  adequate  solution,  or  a  most  needed 
measure  of  redress  will  fail  of  its  purpose,  and  a  deeper 
hostility  of  class  to  class  be  engendered.  We  have  to 
choose  between  a  relapse  into  the  evils  which  preceded 
the  act,  evils  which  are  driving  us  forward  to  the  revolu 
tionary  measure  of  public  ownership,  and  a  reconstruction 
of  the  Commission  along  the  lines  indicated  by  it. 

Few  social  questions  are  of  more  moment.  It  virtually 
involves  a  usurpation  by  powerful  shippers  and  powerful 
carriers  of  rights  and  privileges  which  belong  equally  to 
all  classes.  Our  national  life  thus  endures  an  injury,  our 
national  interests  show  a  rift,  which  will  ultimately  be 
driven  to  their  centre  by  these  perpetual  strokes  of  the 
few  at  the  strength  and  integrity  of  all.  The  last  thirty 
years  have  seen  in  the  United  States  a  movement  in  this 
direction  which,  for  rapidity,  extent,  and  unexpected- 


Strife  between  Classes  179 

ness,  it  is  difficult  to  parallel  in  the  world's  history.  The 
wealth  of  Roman  patricians,  which  led  ultimately  to  the 
overthrow  of  the  nation,  most  nearly  approaches  it. 

§  28.  In  no  government  does  the  judiciary  exert  a 
more  controlling  influence  than  in  our  own.  We  have 
much  occasion  for  pride  and  satisfaction  in  the  manner  in 
which,  for  the  most  part,  this  service  has  been  performed. 
Our  method  of  expressing  the  mind  of  the  people  through 
written  constitutions,  and  trusting  the  exposition  and 
maintenance  of  these  constitutions  to  the  courts,  gives 
them  a  commanding  position  in  the  government.  The 
function  of  the  judicial  body  as  opposed  to  the  legislative 
body  is  conservative.  The  courts  expound  constitutional 
law  along  lines  which  they  have  established,  and  it  be 
comes  with  them  a  primary  purpose  to  hold  in  check  any 
movement  which  involves  material  change.  This  relation 
is  the  more  manifest  under  the  Constitution  of  the  United 
States  because  it  is  so  difficult  of  alteration,  and  because 
its  present  efficiency  is  due,  in  so  large  a  degree,  to  emi 
nent  jurists  who  have  sat  upon  the  Supreme  Bench. 
This  inevitable,  functional  conservatism  is  increased  by 
the  interdependence  and  coherence  of  judicial  principles, 
by  the  hold  they  gain  upon  the  mind  by  habitual  use, 
and  by  the  many  labyrinths  which  have  been  successfully 
threaded  by  means  of  them.  The  attention  of  the  judge 
is  directed,  not  primarily  to  the  wants  of  the  community, 
from  which  he  has  measurably  withdrawn,  to  its  changing 
circumstances,  but  to  the  beneficence  of  the  system  which 
it  is  his  duty  to  administer.  He  is  accustomed  to  a  slow, 
coherent  movement  in  which  the  ultimate  results  spring 
from  principles  as  old  as  government  itself.  The  thing 
that  is,  and  the  thing  that  has  been,  have  necessarily  a 
firm  hold  on  his  mind.  But  the  thing  that  is,  is  the  very 


1 80  The  Growth  of  Nationality 

thing  that  society  in  its  progress  finds  occasion  to  change. 
It  is  anxious  to  restrict  vested  interests,  to  subject  them 
in  some  new  way  to  the  public  welfare.  The  law  has 
shaped  itself  inevitably  more  to  the  interests  of  property 
than  to  those  of  persons,  to  the  wants  of  the  wealthy  than 
to  those  of  the  poor,  to  the  feelings  of  those  in  the  con 
trol  of  the  state  than  of  those  who  are  suffering  its  con 
trol.  Those  who  have  power  shape  power  to  their  own 
uses. 

When,  therefore,  fresh  social  problems,  like  those  in 
volved  in  the  labor  movement,  come  before  our  courts, 
they  have  no  precedents  and  few  sentiments  suited  to 
them.  Hence  the  bench  easily  becomes  a  barrier  in  the  way 
of  progress ;  it  can  hardly  fail  to  be  a  barrier  unless  some 
judge  is  found  of  extraordinarily  comprehensive  and  con 
structive  powers.  Thus,  in  that  long  struggle  in  England 
— a  struggle  in  which  she  has  preceded  us  by  many  years 
— in  which  the  workmen  have  won  the  freedom  of  collec 
tive  action,  the  courts  have  with  great  uniformity  been 
opposed  to  them.  Any  united  effort  on  their  part  was 
summarily  repressed,  while  the  concurrent  action  of  em 
ployers  was  passed  by. 

The  legislature,  on  the  other  hand,  comes  directly  from 
the  people,  has  their  immediate  wants  and  wishes  in  view, 
and  is  charged  with  this  very  mission  of  correcting  preva 
lent  methods.  While  we  need  in  no  way  disparage  the 
conservative  function  in  the  State,  the  radical  function  is 
still  more  difficult  to  fulfil,  and  one  which  imparts  to 
conservatism  much  of  the  value  that  belongs  to  it.  If 
there  are  no  motion  and  no  tendency  to  motion,  inertia 
loses  its  purpose.  It  is  thrown  in  to  make  movement 
firm  and  uniform. 

It  is  of  the  utmost  moment,  in  the  balance  of  powers 


Strife  between  Classes  181 

which  constitutes  the  distinguishing  feature  in  the 
mechanism  of  our  Constitution,  that  the  function  of 
the  legislature  be  in  no  way  impeded  or  usurped  by  the 
courts,  that  the  two  hold  on  together  in  their  mutually 
corrective  parts.  In  the  case  just  alluded  to,  it  was  by 
the  action  of  Parliament  that  the  workmen,  in  1875,  at 
length  won  the  freedom  of  collective  action.  An  effort 
not  criminal  in  itself  was  no  longer  to  be  made  criminal 
by  the  fact  that  several  were  united  in  it.  It  was  with 
some  difficulty  that  collision  was  avoided  in  Reconstruction 
between  Congress  and  the  courts.  On  the  whole,  the 
better  opinion  of  Congress — the  opinion  which  grew  more 
directly  out  of  the  changed  conditions — prevailed.  The 
courts  are  slow  to  catch  the  reformatory  temper  involved 
in  legislation,  and  still  slower  to  lend  themselves  to  its 
successful  expression. 

§  29.  We  have  given  an  example  in  the  Interstate 
Commerce  Act  of  a  legislative  intention  brought  to  no 
thing  in  a  short  period  by  the  inertia  of  the  courts.  It 
will  hardly  be  denied  that  a  tyranny  of  the  courts  is  per 
fectly  possible,  and  has  at  times  been,  in  the  history  of 
England,  a  disastrous  fact.  Government  by  injunction, 
to  which  the  public  attention  has  been  repeatedly  directed 
of  late,  offers  an  example  of  an  abuse  of  power.  This 
action  of  the  courts  has  been  one-sided  in  its  operation, 
has  deepened  class  divisions,  and  has  evoked  bitter  resent 
ment.  Workmen  have  felt  that  the  courts  were  a  facile 
instrument  in  the  hand  of  their  adversaries.  A  failure  in 
the  courts  to  apprehend  the  conditions  of  social  develop 
ment  and  to  be  governed  by  them  is  more  difficult  to 
bear  than  unwise  legislation,  or  corrupt  administration. 
Recourse  may  be  had  against  these  to  the  bench,  to  those 
whose  duty  it  is  to  review  action  and  bring  it  into  har- 


1 82  The  Growth  of  Nationality 

mony  with  fundamental  civic  principles.  But  if  judicial 
action  is  misdirected,  if  it  becomes  the  expression  of  a 
stubborn  conservative  temper,  if  it  gives  some  new 
extension  to  that  temper,  there  is  no  further  appeal. 
The  foundations  are  out  of  order.  The  seat  of  even- 
handed  justice  is  usurped  by  a  partisan  bias.  The  public 
conscience  is  thus  perverted,  the  national  life  is  turned 
aside  from  its  true  unfolding,  and  a  confusion  appears  for 
which  there  is  no  remedy  short  of  revolution,  the  probing 
of  men's  thoughts  to  the  depths  of  primary  principles. 

A  court  is  necessarily  armed  with  the  power  of  self- 
protection.  It  cannot  suffer  injurious  affront,  or  allow  its 
processes  to  be  neglected,  or  its  purposes  to  fail.  It 
must  have  power,  whenever  any  of  these  evils  appear,  to 
arrest  them.  This  is  self-defence.  The  safety  of  its  own 
movements  must  be  assured  as  the  condition  of  doing 
what  is  committed  to  it.  Hence  the  courts  can  inflict 
summary  punishment  on  any  action  which  interferes, 
either  immediately  or  remotely,  with  their  own  pro 
cedure,  any  action  done  in  contempt  of  their  function. 
They  may  thus  arrest  any  action  which  tends  to  make 
the  results  of  the  prosecution  pending  before  them  profit 
less.  Neither  of  the  parties  to  a  suit  can  be  allowed  to 
anticipate  the  judgment  of  the  court  by  appropriating  or 
reducing  in  value  the  property  under  discussion,  or  in  any 
way  rendering  nugatory  the  verdict. 

It  may  also  be  the  purpose  of  a  legal  complaint  to  pre 
vent  some  action  in  injury  of  one's  interests,  as  the  diver 
sion  of  a  stream,  building  a  dam,  taking  possession  of  a 
street.  The  prosecution  may  thus  end  in  an  injunction, 
in  arrest  of  a  contemplated  injury.  Plainly,  however,  a 
mode  of  action  designed  to  protect  the  court,  fulfil  its 
purposes,  and  give  a  needful  extension  of  its  action  in  its 


Strife  between  Classes  183 

own  well  defined  field  of  redress,  is  not  to  be  employed 
as  a  means  of  trespassing  on  the  legislative  department, 
and  making  that  criminal  which  would  not  otherwise  be 
criminal. 

§  30.  It  is  perfectly  easy  for  a  court  to  give  its  injunc 
tions  the  character  of  legislation,  extending  them  to  some 
action  not  in  itself  under  the  censure  of  the  law,  and  then 
by  a  summary  punishment  set  aside  the  constitutional 
right  of  trial  by  jury.  The  law  is  thus  made,  interpreted, 
and  enforced  by  the  same  person  or  persons  in  a  manner 
that  admits  of  no  discussion  or  redress.  No  absolutism 
could  be  more  complete  or  rapid  than  this;  no  usurpation 
more  inadmissible.  When  Debs— In  re  Debs,  158  U.  S., 
564 — and  others  not  designated  were  enjoined  not  to  do 
certain  acts,  and  were  afterwards  punished  for  disobe 
dience,  the  court  became  at  once  a  legislative,  judicial, 
and  executive  body.  This  inevitably  follows  if  a  court, 
by  injunction,  enters  the  field  of  police  and  criminal  regu 
lation,  and  undertakes  to  define  the  relation  of  persons 
and  classes  to  each  other  in  their  personal  rights. 

Hence  arises  the  just  limitation  that  an  injunction  is 
not  applicable  to  criminal  cases.  The  court  has  no  occa 
sion  to  forbid  an  action  that  the  legislature  has  already 
pronounced  criminal,  and  no  right  of  its  own  bent  to  de 
clare  that  criminal  which  the  law  has  not  held  to  be 
criminal.  The  acts  under  consideration  in  connection 
with  Debs  and  his  associates  were  acts  which  the  law  of 
England  had  for  long  regarded  as  criminal,  and  had  only 
recently  removed  from  that  category.  The  line  of  divi 
sion  may,  at  times,  be  obscure  and  easily  passed,  yet  the 
protection  by  a  court  of  its  own  judicial  power  is  quite 
distinct  from  the  assumption  of  legislative  direction  in 
the  complicated  field  of  social  rights.  The  one  turns  on 


1 84  The  Growth  of  Nationality 

a  special  inquiry,  under  definite  facts,  and  well  recognized 
judicial  principles,  into  a  case  between  distinct  parties 
before  the  court  whose  property  rights  are  in  question ; 
the  other  looks  to  a  definition  of  what  is  and  is  not  ad 
missible  in  action  under  the  changeable  and  complicated 
claims  of  our  social  life.  A  question  of  this  sort  calls  for 
the  widest  consideration  of  all  interests,  immediate  and 
future,  secular  and  social,  and  their  sympathetic  recon 
ciliation.  This  critical  and  constructive  work  lies  in  the 
province  of  public  opinion  and  legislative  enactment, 
moving  tentatively  toward  the  public  welfare.  A  court 
that  undertakes  by  injunction  to  anticipate  and  settle  the 
relation  of  classes  because  of,  and  by  means  of,  some  pe 
cuniary  interests  involved  in  the  conflict,  much  misappre 
hends  its  true  function. 

When  the  court  in  the  case  of  Debs  gave  a  general 
prohibition  resting  on  unknown  parties,  and  followed  it 
up  with  summary  punishment,  as  it  did,  it  committed  a 
distinct  trespass  on  the  legislative  function,  and  with  a 
flagrant  disregard  of  a  leading  constitutional  right, — the 
right  of  trial  by  jury.  This  usurpation  was  so  radical  as 
to  render  this  safeguard  wholly  inapplicable.  We  cannot 
often  look  to  our  courts  for  progress.  Their  function  and 
their  tendency  are  conservative.  We  ought  not  to  find 
them  pressing  close  up  to,  or  passing,  their  own  proper 
bounds  to  check  or  countervail  those  progressive  changes 
on  which  our  social  prosperity  must  ultimately  depend. 

The  Constitution  of  the  United  States,  with  much  care 
and  reiteration,  protects  the  right  of  trial  by  jury. 

:<  The  trial  of  all  crimes,  except  in  case  of  impeachment,  shall 
be  by  jury."  "  In  all  criminal  prosecution  the  accused  shall 
enjoy  the  right  of  a  speedy  trial  by  an  impartial  jury."  "  No 


Strife  between  Classes  185 

person  shall  be  held  to  answer  for  a  capital  or  otherwise  in 
famous  crime  unless  on  presentment  or  indictment  of  a  grand 
jury."  "  In  suits  at  common  law,  when  the  value  in  con 
troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved." 

These  safeguards  of  the  Constitution  are  all  evaded  by 
the  device  of  an  injunction;  and  this  in  a  class  of  cases 
which  involves  the  utmost  division  of  public  opinion,  an 
absolute  denial  on  the  part  of  many  of  any  wrong-doing, 
and  a  distinct  taking  of  sides  by  the  court  in  a  social  con 
troversy.  The  misuse  of  the  injunction  is  the  more  obvi 
ous  from  the  fact  that  it  has  never  been  used  in  defence 
of  workmen,  whose  losses,  grievances,  and  weaknesses 
are  more  conspicuous  than  those  of  employers.  This  use 
would  seem  to  come  under  not  one,  but  all,  the  restric 
tions  laid  on  the  injunction  :  it  is  "  not  to  operate  oppres 
sively  ";  it  must  be  "  a  fit  and  appropriate  mode  of 
redress  ";  it  must  "  not  be  liable  to  work  an  immediate 
injury." 

§  31.  The  circumstances  which  attended  on  the  strike 
at  Chicago,  in  1894,  are  greatly  to  be  regretted,  and  have 
carried  with  them  widely  distributed  evils.  The  final 
effect  on  the  public  mind  was  a  sense  of  failure  in  efforts 
and  sacrifices  meant  to  be  socially  corrective,  an  arbitrary 
planting  of  the  foot  of  power,  an  assertion  of  invincible 
force  in  things  as  they  are,  whether  for  evil  or  for  good. 
The  General  Government  made  its  military  as  well  as  its 
judicial  power  felt  with  a  precipitancy  and  absoluteness 
that  promised  little  for  popular  liberty.  The  masses  have 
such  odds  against  them,  make  so  many  mistakes,  and  fight 
so  losing  a  battle,  that  our  sympathies  are 'profoundly 
moved  by  their  failures,  even  when  those  failures  are  in- 


1 86  The  Growth  of  Nationality 

evitable.  One  forgets,  when  in  the  presence  of  authority 
used  with  indifference  and  assumption,  that  the  cause  of 
the  people  must  be  made  good  by  patience,  self-restraint, 
and  wisdom;  that  only  thus  can  it  become  the  cause  of 
society.  Events  which  roll  one  more  blind,  desolating 
flood  over  fields  that  are  beginning  to  show  the  germs  of 
a  more  generous  and  diffusive  life,  are  fearful  repressions 
of  hope  and  provocations  of  passion.  They  seem  to 
shake,  like  an  earthquake,  the  most  massive  structures  of 
our  national  strength. 

It  is  strange  how  criminal  become  the  combinations 
of  the  weak  in  the  eyes  of  those  who  have  necessitated 
these  unions  by  the  thousand  and  one  ways  in  which  they 
have  gathered  opportunities  and  powers  into  their  own 
hands,  and  assiduously  framed  law  and  custom  in  their 
own  defence.  We  are  by  no  means  rid  of  the  feeling, 
once  so  dominant,  that  the  union  of  workmen  in  pursuit 
of  their  own  interests  is  treason  to  society.  We  can 
hardly  frame  a  law  against  trusts  without  finding  its 
earliest  application  directed  against  some  innocuous  com 
bination  of  workmen.  We  hate  any  restlessness  of  the 
mudsills.  There  still  lingers  in  the  dominant  class  the 
dogma  of  the  divine  right  of  kings.  The  strong  are 
strong,  the  rich  are  rich,  by  divine  appointment.  Any 
effort  to  redistribute  advantages,  to  reconstruct  society,  is 
a  rejection  of  preordained  laws.  So  it  may  be,  but  so  it 
is  not  necessarily.  It  is  a  patient,  painstaking  task  to 
untangle  the  knotted  skein  of  social  relations,  and  lay 
its  threads  once  more  side  by  side  with  each  other. 

§  32.  It  is  not  alone  in  defining  the  conditions  of 
social  order  that  the  judicial  mind  has  been  found  unduly 
conservative.  We  have  met  with  the  same  difficulty  in 
the  apportionment  of  public  burdens.  Hitherto  the  larger 


Strife  between  Classes  187 

share  of  the  cost  of  the  government  has  fallen  on  those 
who  receive  the  least  from  it.  The  principle  of  contribu 
tion  according  to  ability  has  received  little  recognition. 
A  notable  illustration  of  this  failure  to  proportion  taxation 
to  the  power  of  the  citizen  was  furnished  by  the  decision 
of  the  Supreme  Court  in  connection  with  the  income  tax. 

Wealth,  the  form  of  power  most  coveted  in  the  United 
States,  has  begotten  the  usual  grasping  temper  which 
accompanies  success.  Not  only  have  the  wealthy  shaped 
the  laws,  and  used  existing  laws,  in  a  way  to  favor  their 
accumulations,  they  have  assiduously  and  successfully 
evaded  their  share  of  the  public  burdens.  The  lower 
middle  and  the  lower  classes,  if  we  arrange  men  roughly 
according  to  their  wealth,  are  taxed  beyond  all  propor 
tion  more  heavily  than  the  upper  middle  and  wealthy 
classes.  The  taxes  imposed  by  the  General  Government 
have  especially  tended  to  this  result.  They  have  not 
only  been  laid  on  consumption,  they  have  discriminated 
against  the  consumption  of  the  many,  and,  by  the  pro 
tective  character  of  the  duties  imposed,  have  compelled 
an  additional  contribution  for  the  benefit  of  the  producer. 
Taxation  has  thus  been  the  means  of  a  large  annual  trans 
fer  of  resources  from  the  many  to  the  few,  from  the  poor 
to  the  rich.  The  income  tax  of  1894,  rendered  remark 
able  by  the  decision  of  the  Supreme  Court — Pollock  vs. 
Farmers'  Loan  and  Trust  Company,  157  U.  S.,  429 — was 
designed  expressly  as  a  partial  correction  of  this  in 
equality.  It  laid  a  tax  on  incomes  in  excess  of  $4000, 
exempting  savings  banks,  building  and  loan  associations, 
and  mutual  insurance  companies.  It  was  intended  to 
shield  those  already  unduly  taxed,  and  to  reach  those 
escaping  taxation. 

The  animus  of  the  decision  was  shown  by  the  fact  that 


1 88  The  Growth  of  Nationality 

the  court,  evenly  divided,  was  able  to  give  no  opinion  on 
the  three  fundamental  questions,  whether  the  portions 
of  the  law  pronounced  void  were  such  as  to  destroy  its 
validity,  whether,  as  a  direct  tax  unapportioned  according 
to  population,  it  was  unconstitutional,  and  whether  it  was 
void  from  want  of  uniformity  in  its  application.  The 
court  was  evenly  divided  on  a  rejection  of  any  income 
tax  as  unconstitutional,  and  by  a  bare  majority  succeeded 
in  rendering  worthless  the  act  before  it.  The  theory 
which  underlay  the  decision  and  secured  an  adverse  judg 
ment,  rested  on  a  new  principle,  the  permanent  rejection 
of  an  income  tax  by  the  General  Government. 

§  33.  The  Constitution  of  the  United  States  gives  un 
limited  power  of  taxation  to  the  General  Government, 
with  one  exception  and  two  restrictions.  The  exception 
is  a  tax  on  exports,  and  the  restrictions  are  that  duties, 
imports,  and  excises  are  to  be  uniform  throughout  the 
United  States,  and  that  direct  taxes  are  to  be  laid  in  pro. 
portion  to  population,  estimated  by  adding  to  the  whole 
number  of  free  persons  three  fifths  of  those  held  in  bond 
age — the  "  all  other  persons  "  of  the  Constitution. 

The  income  tax  was  attacked  before  the  court  on  three 
grounds:  as  not  uniform,  as  not  apportioned,  and  as  rest 
ing  on  income  derived  from  public  bonds.  The  last  of 
these  objections  calls  for  little  consideration.  The  gen 
eral  policy  of  the  government,  as  interpreted  by  the 
courts,  has  been  to  exempt  from  taxation  all  forms  of 
government  bonds.  The  taxation  of  public  bonds, 
whether  those  of  the  States  or  of  the  United  States,  would 
simply  be  an  embarrassment  of  public  powers.  The 
sums  gained  by  such  taxation  would  be  lost  again  by 
the  higher  rates  under  which  the  loans  would  be  made,  the 
administrations  of  the  general  and  of  the  local  govern- 


Strife  between  Classes  189 

ments  would  be  involved  in  annoying  conflicts,  and 
would  waste  strength  in  gathering  revenues  which  would 
disappear  again  amid  the  additional  difficulties  attendant 
on  fiscal  measures.  The  exclusion  of  income  derived 
from  public  bonds  would  have  left  the  law  unharmed. 

The  attack  on  the  law  as  disregardful  of  uniformity 
and  of  apportionment,  went  to  its  substance.  The  pri 
mary  purpose  of  the  requisition  that  duties,  imposts, 
and  excises  should  be  uniform  throughout  the  United 
States  was  to  prevent  discrimination  between  the  States 
in  imposing  public  burdens.  The  act  under  consideration 
was  not  faulty  in  this  particular.  If  we  give  the  limita 
tion  the  largest  rendering  which  equity  in  taxation  calls 
for;  if  the  uniformity  means  uniformity  between  persons 
as  well  as  between  States,  still  the  law  was  not  objection 
able.  Taxes  must  fall  upon  certain  classes,  specified 
occupations,  and  given  kinds  of  goods.  It  is  of  the  sub 
stance  of  taxation  to  discriminate.  All  the  uniformity 
possible  is  that  all  persons  belonging  to  the  specified 
class  shall  be  included,  all  goods  of  the  sort  named  be 
covered  by  the  tax.  In  defining  the  classes  and  goods  on 
which  the  tax  is  laid,  the  legislature  has  the  utmost 
liberty.  It  may  and  does  select  its  objects  of  taxation 
on  many  slight  and  secondary  grounds,  grounds  that 
would  have  little  force  aside  from  the  purposes  of  taxa 
tion.  This  liberty  of  the  legislature  is  to  be  judged 
broadly,  by  the  relation  of  part  with  part,  burden  with 
burden,  in  the  entire  field  of  taxable  things;  and  also  by 
the  ease  and  certainty  with  which  the  revenue  aimed  at 
can  be  secured.  There  is  here  much  ground  for  criticism 
resting  on  fitness,  very  little  for  criticism  resting  on  legal 
right. 

The  act  under  consideration  was  an  effort  to  secure 


190  The  Growth  of  Nationality 

something  like  uniformity  in  taxation,  not  an  act  in  dis 
regard  of  uniformity.  The  exemption  of  all  incomes  less 
than  $4000  was  made  on  the  express  ground  that  those 
whose  incomes  were  less  than  this  sum  were  paying  de 
cisively  more  relatively  than  those  whose  incomes  ex 
ceeded  this  sum.  The  law  was  designed  in  part  to  correct 
this  inequality.  The  notion  of  uniformity  was  of  its  very 
substance.  The  contention  that  no  exception  should  be 
made  in  incomes  was  judging  the  law  by  its  letter  and 
not  by  its  spirit ;  by  what  lay  upon  its  face  and  not  by 
what  it  was  intended  and  fitted  to  accomplish.  The 
justification  of  the  law  was  found  in  the  very  principle 
under  which  it  was  sought  to  condemn  it. 

§  34.  The  contention  concerning  apportionment  was 
the  central  point  of  attack,  and  that  which,  in  the  final 
judgment,  made  the  law  a  wreck.  The  Court  decided  that 
a  tax  on  income  derived  from  land  was  a  direct  tax  in  the 
meaning  of  the  Constitution,  and  could  not  be  laid  other 
wise  than  by  apportionment.  As  apportionment  was 
impossible,  the  tax  thus  became  impossible.  An  income 
derived  from  land  furnishes  an  obscure  part  of  many,  if 
not  of  most  incomes;  the  decision  therefore  left  the  law 
in  a  shattered  and  unserviceable  form. 

We  should  see  two  things,  the  practical  results  of  the 
decision,  and  the  methods  by  which  it  was  reached.  It 
has  greatly  limited  the  power  of  the  General  Govern 
ment  where  above  all  it  should  have  a  free  hand, — in  the 
matter  of  taxation,  in  securing  adequate  revenues,  and  at 
the  same  time  a  just  division  of  burdens.  The  custom 
of  the  nation,  the  ease  of  collection,  and  the  doctrine  of 
protection  have  made  duties  and  excises  the  chief  source 
of  revenue.  The  only  considerable  tax  that  was  likely  to 
be  imposed  lying  in  a  new  and  corrective  direction  was  an 


Strife  between  Classes  191 

income  tax.  Such  a  tax  under  the  present  decision  is 
no  longer  feasible. 

The  very  idea  of  equity  in  taxation  has  been  thrust 
aside  in  thrusting  aside  the  only  means  by  which  it  was 
likely  to  be  reached.  The  rich  are  allowed  to  escape  the 
burdens  which  properly  fall  to  them,  and  the  poor  are 
forced  more  and  more  decisively  into  the  servitude  of 
excessive  taxation.  The  system  of  indirect  taxation, 
which  lends  itself  so  readily  to  all  species  of  favoritism, 
to  building  up  this  and  that  form  of  production,  has 
been  made  the  necessary  and  almost  exclusive  method  of 
the  General  Government.  No  power  of  correction  re 
mains  to  it  which  will  materially  alter  this  maladjustment. 
One  may  not  attribute  motives,  he  must  judge  facts. 
The  decision  of  the  Supreme  Court  has  set  up  a  most  un 
expected  and  undesirable  bulwark  of  defence  around  the 
rich  in  their  relation  to  public  burdens.  Permanent  ex 
emptions  have  been  established  which  destroy  the  equality 
of  classes. 

The  considerations  in  connection  with  which  this  dis 
astrous  conclusion  was  reached  were  equally  faulty  with 
the  result.  The  question  of  what  was  to  be  understood 
by  a  direct  tax,  subject  to  apportionment  according  to 
population,  had  come  at  an  early  period  before  the  Su 
preme  Court — Hylton  vs.  United  States,  3  Dallas,  171. 
It  was  seen  at  once  that  the  word  direct  had  not  been 
used  with  any  very  exact  meaning.  It  was  unanimously 
agreed  by  the  court  that  the  limitation  was  not  intended 
to  suspend  the  power,  but  to  determine  its  manner  of 
use.  A  rendering,  therefore,  of  the  restriction  which 
took  away  from  the  national  legislature  the  right  to  lay 
certain  taxes  was  at  once  rejected.  The  limitation  was 
to  give  way  to  the  power  when  the  two  were  in  conflict ; 


i92  The  Growth  of  Nationality 

not  the  power  to  the  limitation.  If,  from  the  nature  of 
the  case,  the  restriction  was  inapplicable,  then  it  disap 
peared,  and  the  power  remained  untrammelled. 

The  only  two  forms  of  direct  taxes  to  which  apportion 
ment  was  applicable  were  seen  to  be  a  tax  on  real  estate 
and  a  poll  tax.  These  two  and  no  others  were  hence 
forward  held  to  be  subject  to  this  provision.  Thus  a 
sensible,  straightforward  principle  was  established,  and 
the  Constitution  was  cured  of  its  defect  of  expression 
with  the  least  possible  injury  and  the  least  loss  of  power. 
For  a  hundred  years  this  interpretation  had  been  accepted. 
An  income  tax  had  been  repeatedly  imposed,  and  had 
been  recognized  in  judicial  action.  Springer  vs.  United 
States,  1 02  U.  5.,  586.  Between  the  years  1861  and  1870 
nine  acts  had  laid  or  modified  an  income  tax.  No  pre 
cedent  could  well  be  stronger.  Yet  the  thing  complained 
of  is  not  so  much  the  modification  of  a  well-established 
principle,  as  its  modification  against  equity  and  the  pub 
lic  welfare ;  its  modification  so  that  those  already  escaping 
their  obligations  to  the  government  might  be  protected 
in  the  position  they  had  won.  It  is  not  easy  to  find  an 
other  decision  which  so  openly  departs  from  the  law  in 
order  to  shelter  privilege. 

The  technical  ground  on  which  this  was  done  was  that 
a  tax  on  income,  derived  from  real  estate,  is  a  tax  on  real 
estate.  A  logical  relation  is  thus  made  to  push  aside  a 
plain,  practical  fact,  that  had  long  been  accepted,  and 
this  with  no  other  result  than  to  embarrass  the  govern 
ment  and  restrain  it  in  the  pursuit  of  justice.  An  income 
tax  as  a  tax, — the  only  relation  in  which  we  have  occasion 
to  consider  it — is  wholly  distinct  in  form  and  in  sub 
stance  from  a  tax  on  real  estate.  Its  relations  as  a  tax 
are  quite  its  own,  and  it  carries  with  it  as  significant  and 


Strife  between  Classes  193 

beneficent  results  as  any  tax  whatever.  If  we  were  to 
divide  up  an  income  tax  according  to  the  sources  from 
which  an  income  is  derived,  we  might  dissolve  away  its 
own  characteristics  and  assign  it  a  great  variety  of  forms 
and  qualities.  If  the  income  arose  from  traffic,  it  would 
assume  the  character  of  a  license;  or  if  the  trade  were 
foreign  trade  the  nature  of  a  duty.  If  it  were  derived 
from  production,  its  effects  would  be  those  of  an  excise. 
Against  this  subtle  reasoning,  shaped  to  sustain  an  ob 
ject,  there  remains  the  simple  fact  that  an  income  tax, 
a  tax  of  its  own  order  with  its  own  results,  had  been  re 
peatedly  recognized,  and  was  able,  in  a  high  degree,  to 
subserve  the  public  welfare. 

Another  consideration  of  much  moment  is  that  the 
limitation  on  direct  taxation  in  the  Constitution  was 
part  of  a  compromise.  The  apportionment  was  not  de 
manded  on  account  of  any  general  principle  in  taxation- 
was  not  the  ordinary  apportionment  according  to  popula 
tion,  but  was  a  special  apportionment  by  which  the 
burden  was  divided  in  a  given  way  between  slaveholding 
and  non-slaveholding  States.  When  the  decision  of  1894 
was  made,  the  grounds  and  occasions  of  this  compromise 
had  wholly  disappeared.  The  clause  of  the  Constitution 
had  lost  its  significance.  The  interpretation,  therefore, 
which  it  had  borne  for  so  long  a  time,  and  which  had 
rendered  it  innocuous  might  well  have  been  let  alone. 
To  revive  this  effete  question  for  ends  entirely  new  and 
mischievous  was  an  action  as  much  aside  from  the  real 
purposes  of  the  Constitution  as  it  was  in  itself  illegitimate. 
The  original  purpose  was  partly  to  shelter  slave  property 
and  partly  to  bring  it  under  taxation ;  a  definite  ratio  was 
settled  between  the  two  sets  of  States.  The  purpose  to 
which  the  Supreme  Court  has  very  unexpectedly  put  this 


i94  The  Growth  of  Nationality 

limitation,  the  remainder  of  an  outgrown  controversy, 
has  been  to  shift  the  burden  of  taxation  permanently 
from  the  rich  to  the  poor,  from  ability  to  pay  to  the 
necessary  expenditures  of  living.  Whatever  may  be 
thought  of  the  first  intention  of  the  limitation,  it  can 
hardly  be  censured  as  severely  as  this  its  later  use.  The 
offensive  provision  has  been  made  more  noxious  in  its 
death  than  in  its  life. 


CHAPTER  VII 
Conclusions 

§  i.  IN  estimating  the  results  of  something  more  than 
a  century  of  national  life  on  the  growth  of  nationality  in 
the  United  States,  we  need  to  remind  ourselves  of  what 
is  included  in  nationality.  It  stands  for  the  sympathetic 
activity  of  a  people  in  every  portion  of  it  in  the  pursuit 
of  their  common  prosperity.  The  social,  commercial, 
civil,  and  intellectual  life  of  the  nation  becomes  one  freely 
participated  in  by  every  citizen  according  to  the  capacity 
which  belongs  to  him. 

The  first  obstacle  to  this  unity  of  sentiment,  at  the 
time  of  the  formation  of  our  government,  was  the  narrow 
provincial  life  led  by  the  several  colonies.  This  gave  rise 
to  a  restricted  policy  and  to  unreasonable  prejudices. 
This  difficulty,  though  it  seemed  formidable,  and  for  a 
considerable  period  occupied  the  foreground,  was  not  so 
serious  as  it  appeared  to  be.  The  divisive  influences  it 
stood  for  were  sporadic,  changeable,  and  sure  to  give 
way  before  the  progress  of  events.  The  whole  move 
ment  of  civilization  was  in  reduction  of  their  power. 
The  rapid  development  of  commerce  and  of  social  life 
could  not  but  overcome  them.  We  may  say  that  these 
alienations  of  ignorance  and  self-assertion  have  almost 
wholly  disappeared.  The  General  Government  is  far 
more  in  danger  of  unduly  overshadowing  State  authority 
than  of  itself  being  overshadowed  by  the  States.  We 

195 


196  The  Growth  of  Nationality 

need  to  exercise  our  watchfulness  on  this  side  rather  than 
on  that  in  preserving  the  admirable  balance  between 
local  and  central  government  which  the  force  of  circum 
stances,  rather  than  conscious  devices,  has  conferred  upon 
us.  We  are  no  longer  in  danger  of  vertical  cleavage, 
parting  us  like  drift-ice  into  insignificant  blocks.  This 
result  may  seem  the  more  surprising  when  we  remember 
the  wide  and  continuous  stream  of  immigration  which 
has  poured  in  upon  us.  We  have,  at  times,  regarded  this 
danger  as  greater  than  it  has  proved  to  be.  This  flood 
of  population  has  been  scattered  widely  through  the 
States,  and  so  has  somewhat  strengthened  the  unity  be 
tween  them.  A  consideration  of  more  moment  is,  that 
it  has  helped  to  enlarge  that  productive  and  commercial 
movement  which  has  devoured  us  all  alike.  The  material 
to  be  digested  has  become  as  food  quickening  the  diges 
tive  process. 

§  2.  The  second  great  danger  which  our  national 
unity  encountered,  and  one  far  greater  than  the  earlier 
one,  was  the  formation,  in  each  of  two  distinct  and  ex 
tended  sections,  of  a  type  of  social  life  in  inherent  conflict 
with  that  of  its  fellow.  This  evil,  far  from  decreasing 
with  the  progress  of  years,  steadily  gained  ground,  and, 
to  the  surprise  of  many  good  citizens,  showed  more  and 
more  an  implacable  character.  This  occasion  of  division 
came,  in  due  time,  to  the  arbitrament  of  war,  a  war  so 
thorough  and  exterminating  as  to  root  up  and  sweep 
away  the  institution  which  had  been  its  occasion.  It  has 
left  behind  it  a  somewhat  obdurate  race  problem,  but  one 
that  concerns  more  or  less  all  sections  of  the  country.  It 
takes  on,  it  is  true,  much  more  intensity  in  the  South 
than  in  the  North,  yet  both  North  and  South  are  inter 
ested  in  much  the  same  way  in  its  ultimate  solution. 


Conclusions  197 

A  servile  class  in  the  South  would  embarrass  both  it  and 
the  North.  A  proximate  equality  in  the  conditions  of 
production  in  the  two  sections  is  of  great  moment  to 
both.  The  one  method  of  equity  is  equally  the  prosperity 
of  both.  There  is  in  this  remainder  of  slavery  a  ground 
of  irritation,  but  not  of  national  division.  Nowhere  in 
the  broad  area  of  our  country  is  there  arising  any  such 
fundamental  diversity  of  interests  between  considerable 
sections  as  to  be  the  occasion  of  alarm,  much  less  of  any 
effort  looking  toward  separation.  All  sound  constructive 
forces  are  on  the  side  of  national  life.  We  are  in  no 
danger  of  breaking  asunder  by  the  weight  of  distinct 
parts  inadequately  bound  to  each  other. 

§  3.  The  third  embarrassment — an  embarrassment 
rather  than  a  difficulty — in  our  national  life  has  been  in 
dicated  as  arising  from  the  interior  federal  character  of 
our  Constitution.  The  three  departments  have  been 
planted  side  by  side  with  the  expectation  that  they 
would  mutually  support,  supplement,  and  check  each 
other.  On  the  whole,  they  have  done  this,  and  have 
done  it  increasingly  well.  If  we  were  to  compare  the 
administrations  of  Jefferson  and  Madison  with  the  politi 
cal  movements  of  our  own  day,  we  should  see  that  the 
several  departments  ^re  jnore,  not  less,  concurrent  than 
at  the  beginning.  The  comparative  peacefulness  of  our 
national  life~has  favored  this  result.  There  has  been  but 
little  occasion  for  the  strain  of  diverse  policies  in  depart 
ments  sustained  by  a  divided  public  opinion.  This  evil 
appeared  in  the  critical  period  of  Reconstruction,  but 
passed  by  with  no  permanent  injury.  The  unity  of  a 
government  ordered  under  this  idea  of  separate  depart 
ments  with  mutual  restraints  must  be  found  in  the  unity 
of  the  people,  in  a  vigorous  public  opinion  at  union  with 


198  The  Growth  of  Nationality 

itself  in  essential  points.  The  general  growth  of  nation 
ality  has  furnished  us  with  this  public  opinion,  and  the 
several  wheels  of  government,  driven  by  firm  and  uniform 
forces,  have  revolved  in  quiet  harmony.  An  occasion  of 
strife  would  doubtless  appear  at  this  point,  if  our  national 
prosperity  should  forsake  us;  if  our  contentment  should 
disappear,  and  the  bitterness  of  divided  opinion  overtake 
us.  The  separation  of  departments  only  becomes  mis 
chievous,  when  it  rests  back  on  a  corresponding  division 
of  sentiment  in  the  people. 

§  4.  While  these  earlier  grounds  of  dissension  have 
been  met  and  removed,  there  has  arisen,  without  observa 
tion,  a  danger  greater  than  they  all,  one  which  has 
hitherto  been  the  pre-eminent  dissolving  force  in  the  life 
of  nations,  and  one  that  is  likely  to  be  a  fruitful  source 
of  trouble  with  us  for  years  to  come,  a  contention  among 
classes  as  to  their  respective  rights  in  the  State.  This  is 
not  a  vertical,  but  a  horizontal,  cleavage.  It  stands  for 
those  innumerable  laminae  which  disclose  the  planes  of 
pressure  in  what  was  once  the  solid  and  homogeneous 
rock,  and  which  prepare  it  for  rapid  dissolution  under  the 
attacks  of  the  elements. 

Our  Constitution,  jealous  of  all  class  distinctions,  was 
careful  to  forbid  both  to  the  General  Government  and  to 
the  States  the  conferring  of  any  title  of  nobility.  It  is  not 
to  be  supposed  that  the  national  temper  which  prompted 
this  prohibition  will  willingly  accept  a  distinction  of  op 
portunities  among  citizens  compared  with  which  a  title 
of  nobility  is  a  mere  bagatelle. 

For  the  past  few  years,  deep  and  wide  differences  have 
been  in  the  process  of  formation  between  classes  as  re 
gards  their  terms  of  participation  in  the  public  welfare; 
differences  by  no  means  inherent  in  the  nature  of  the 


Conclusions  199 

case.  The  forms  in  which  they  have  expressed  them 
selves  have  been  these;  favoring  by  protective  law  one 
and  another  form  of  production,  as  those  interested  in 
them  have  won  the  legislative  ear,  with  no  plain  reference 
to  the  public  welfare ;  allowing  of  various  franchises  to 
be  appropriated  by  private  persons ;  unequal  advantages 
extended  by  public  carriers  to  the  several  portions  of  the 
community ;  the  corruption  of  political  life  and  the  abuse 
of  political  power  by  the  use  of  wealth  in  securing  and 
protecting  these  class  privileges ;  the  unequal  distribution 
of  public  burdens  in  taxation.  These  are  all  definite, 
undeniable,  and  weighty  expressions  of  a  growing  tyranny 
of  classes,  which  subverts  our  liberty  in  a  most  radical 
way  and  endangers  our  national  unity.  It  has  found 
support  in  the  stolid,  opaque  selfishness  of  the  com 
mercial  sentiment  so  prevalent  in  English  and  American 
communities;  in  an  extreme  individualism;  in  misappre 
hended  economic  principles,  and  in  that  tenacious  hold 
on  power  which  those  who  have  once  won  it  are  sure  to 
manifest.  While,  in  a  general  abstract  way,  the  ruling 
classes  will  admit  the  necessity  of  reform,  of  a  constant 
and  progressive  unfolding  of  society,  they  fail  almost 
wholly  to  see  the  points  at  which  this  is  to  take  place. 
They  deprecate  change  the  moment  it  brings  new  adjust 
ments  to  existing  relations.  They  feel  that  reform,  like 
a  funeral  procession,  should  take  its  way  through  back 
streets  and  not  along  crowded  thoroughfares ;  yet  it  re 
mains  true  that  the  reforms  most  pertinent  to  our  com 
mercial  life  must  thread  thoroughfares,  must  affect  the 
fortunes  of  the  most  numerous  class  of  our  fellow-citizens. 
.§5.  A  fact  which  greatly  embarrasses  us  in  any  ade 
quate  adjustment  of  the  interests  of  the  several  classes  to 
each  other  under  the  public  welfare  is  that  the  com- 


200  The  Growth  of  Nationality 

mercial  temper  has  forced  its  way  into  politics,  and  there, 
by  the  agency  of  the  political  boss,  holds  riotous  sway. 
The  legislature,  the  tribunal  to  which  the  people  take 
appeal  in  their  social  and  civic  conflicts,  has  far  less  of 
the  discriminating  and  progressive  temper  which  can 
alone  apprehend  and  render  justice  than  the  case  de 
mands.  This  is  illustrated  in  the  lame  way  in  which  the 
Interstate  Commerce  Commission  has  been  left  to  struggle 
on  with  insuperable  difficulties.  A  legislature  that  has 
innumerable  ends  of  its  own  to  be  made  up  and  pursued 
in  the  midst  of  public  interests  is  a  weak  instrument  of 
reform.  With  this  edgeless  tool  the  people  must  put  to 
the  more  strength.  Our  legislative  halls  have  been  in 
part  captured  by  the  very  commercial  forces  that  are  to 
be  restrained.  This  fact  adds  much  to  the  confusion  and 
ferment  of  the  public  mind. 

Nor  are  we  altogether  fortunate  in  the  second  refuge 
of  justice,  the  judiciary.  In  nations  which  lay  so  much 
stress  upon  law  as  do  the  English-speaking  nations,  there 
is  no  more  fundamental  condition  of  concord  than  the 
feeling  that  the  law  will  be  interpreted  and  applied  in  be 
half  of  the  public  welfare;  that  the  spirit  of  justice  will 
scatter  all  its  subterfuges.  Equality  before  the  law  must 
mean  equality  in  privileges,  rights,  and  duties.  The 
judiciary  must  be  the  conscience  of  the  nation,  discerning 
the  true  conditions  of  national  growth,  and  settling  the 
relations  of  citizen  with  citizen,  of  class  with  class,  exclu 
sively  on  the  basis  of  the  public  welfare.  The  conviction 
that  this  function  of  defining  rights,  ever  in  a  more  ab 
solute  and  exact  form,  is  being  performed  by  our  courts, 
imparts  to  our  national  life  buoyancy  and  strength.  Any 
feeling  that  there  are  blindness  and  prejudice  in  this  central 
shrine  of  law,  where  interests  are  weighed  with  each  other 


Conclusions  201 

with  a  wide  forecast  of  the  future,  and  rights  and  justice 
defined  under  the  soundest  and  most  significant  princi 
ples,  involves  a  fatal  loss  of  confidence  in  the  institutions 
which  bind  us  together  as  a  nation.  We  need  just  now 
to  recover  a  more  absolute  sense  of  wisdom  in  the  oracles 
of  law. 

The  American  people  will  never  become  wholly  minis- 
trant  to  each  other  till  they  feel  that  the  laws  are  framed 
and  administered  with  reference  to  the  public  welfare. 
Thus  growing  intelligence  makes  this  ever  a  more  im 
perious  demand  While  a  plutocracy  is  increasingly  en 
folded  in  the  drift  of  events,  the  unity  of  national  growth 
becomes  less  and  less  possible  to  us.  It  is  in  these  minor 
organic  functions  that  our  national  life  is  now  struggling 
for  a  healthy  civic  expression,  which  shall  give  harmoni 
ous  play  to  all  persons  and  parts  in  the  social  body, 
making  them  members  one  of  another.  Civic  forms  can 
never  be  treated  successfully  aside  from  the  vital  im 
pulses  they  enclose.  Our  justice  must  address  itself  to 
the  thoughts  and  the  feelings  alike  of  all  classes  and  con 
ditions  of  men.  Our  national  life  is  the  life  of  the  many. 

§  6.  There  is  hardly  a  contrast  more  unexpected  and 
more  wounding  to  our  national  pride  than  that  between 
the  political  history  of  England  and  of  the  United  States 
during  the  present  century.  Misrule,  political  corrup 
tion  and  irresponsibility  have  obviously  been  on  the  in 
crease  with  us.  The  social  adjustments,  the  distribution 
of  power  and  opportunity,  which  are  associated  with 
political  institutions,  have  become  more  unfavorable. 
Liberty  has  failed  to  fulfil  the  promise  of  a  growingly 
prosperous  and  harmonious  national  life. 

In  England,  on  the  other  hanjj,  political  action  has 
gained  ground  in  purity,  in  its  power  to  keep  adequate 


202  The  Growth  of  Nationality 

ends  and  able  men  in  the  foreground,  in  a  readjustment 
of  political  rights  and  extension  of  suffrage,  in  the  union 
of  the  people  and  Parliament,  and  in  the  growing  rapidity 
and  precision  of  response  between  the  ruling  body  and 
the  wants  of  the  nation.  The  parasitic  presence  of  con 
ventions  and  caucuses,  and  bosses  has  been  escaped, 
social  conditions  have  become  more  equal,  and  the  rights 
of  all  classes  have  found  better  reconciliation.  The  labor 
movement,  as  an  example,  is  many  years  in  advance,  in 
the  correction  of  public  sentiment  and  of  law,  of  the  same 
movement  in  this  country.  What  are  the  causes  of  this 
marked  distinction  ? 

On  the  continent,  parliamentary  government  has  been 
embarrassed  by  a  multiplicity  of  factions,  so  extreme  in 
their  convictions  and  so  bitter  in  their  feelings  toward 
each  other  as  to  be  unable  to  combine  in  any  permanent 
policy.  In  the  United  States,  there  has  been  such  a 
welter  of  democracy,  that  the  one  contention  of  the  two 
parties,  divided  with  difficulty  on  the  ground  of  principles 
and  distinguished  by  an  ill-defined  and  wavering  diversity 
of  temper,  has  been  for  power;  which  each  in  turn  has 
abused  and  has  lost  with  the  accomplishment  of  no  im 
portant  purpose.  There  has  been  no  sufficient  steadfast 
ness,  no  such  distinctness  of  aims,  in  either  of  the  two 
parties,  as  to  restrain  them  from  corruption  when  in 
power,  or  as  to  enable  them,  when  out  of  power,  to  put 
a  restraint  on  their  opponents.  The  cry  of  failure  has 
been  flung  backward  and  forward,  with  little  discrimina 
tion  or  damaging  force. 

In  England,  on  the  other  hand,  each  party  has  ad 
vanced  good  government;  or,  failing  of  this,  has  quietly 
yielded  to  its  competitor.  The  movement  has  been  con 
stantly  one  of  weighty  interests,  and  of  sustained  effort 


Conclusions  203 

in  their  behalf.  What  a  surprising  political  record  is  im 
plied  in  the  fact,  that  one  man,  characterized  by  sincerity 
and  honesty,  has  been  for  sixty  years  of  parliamentary 
life,  an  ever-increasing  exponent  of  national  politics. 
We  can  show  nothing  approaching  to  it.  Our  politics, 
during  all  the  latter  portion  of  this  period,  has  been  an 
ever  deepening,  widening,  and  more  confused  interplay 
of  political  management  and  personal  interests.  '  Fran 
chises  to  the  use  of  streets  and  highways,  the  grants  of 
rights  of  way,  concessions  of  charter  privileges,  legislative 
sanctions  to  corporate  undertakings  and  lucrative  usu 
fructs  of  various  species  of  public  wealth,  real  estate  devel 
opment  in  connection  with  municipal  improvements," 
concessions  in  taxation,  uncorrected  abuses  in  the  use  of 
public  franchises,  and  corruption  in  gaining  and  using 
power  have  all  been  present  in  wonderful  vigor  and 
variety  in  our  public  life.1 

It  is  becoming  more  and  more  a  theory  of  those  who  are 
striving  to  take  a  hopeful  and  philosophical  view  of  our 
confused  and  embroiled  politics,  that  partisanship  holds 
in  itself  the  correction  of  these  evils,  that  it  must,  by  its 
own  activity,  purify  itself.  This  view  would  seem  to  be 
mistaken,  and  in  some  aspects  self-contradictory.  While 
the  ideal  notion  may  not  be  workable,  that  a  free  country 
can  be  ruled  by  men  chosen  for  their  fitness  to  perform 
public  service,  and  that  these  public  servants  can  be 
guided  in  their  duty  by  a  constant  recognition  of  imme 
diate  national  wants,  it  is  equally  true,  that  no  govern 
ment,  based  simply  on  the  antagonism  of  parties,  pursuing 
in  a  fluctuating  way  the  ends  of  power,  can  yield  a 
growingly  satisfactory  result.  Bad  as  our  politics  now 
are,  they  still  embrace  many  men  who  cherish  some  idea 

1  The  Rise  and  Growth  of  American  Politics,  p.  318. 


204  The  Growth  of  Nationality 

of  public  service,  and  who  revert  to  it  in  action  when  the 
circumstances  make  this  possible.  The  political  broth 
may  have  been  concocted  and  boiled  in  the  cauldron  of 
witches,  and  yet  it  contains  some  salt.  This  good,  be  it 
less  or  be  it  more,  is, always  in  contention  with  simple 
partisanship.  Partisanship  can  never  reconcile  and  com 
bine  in  a  desirable  government  all  the  conflicting  interests 
present  in  the  community.  This  reconciliation  must  take 
place  along  lines  of  justice,  and  cannot  be  accomplished 
as  a  mechanical  equilibrium  of  opposing  forces,  or  as  a 
tricky  adjustment  of  claims  accepted  according  to  their 
immediate  political  value.  The  politician  employs  one 
interest  and  eludes  another  according  to  no  principle;  he 
does  not  see  their  true  lines  of  union.  Passing  through 
one  struggle,  he  gains  no  ground,  stores  up  no  knowledge, 
but  encounters  the  next  set  of  circumstances  in  a  purely 
empirical  way.  His  successes  and  his  defeats  do  not  take 
hold  on  each  other  in  any  vital  and  coherent  fashion. 

Partisanship  is  sure  to  overestimate  the  more  malign, 
and  underestimate  the  more  benign,  influences.  The 
more  objectionable  the  political  end  aimed  at,  the  more 
certain  are  its  advocates  to  pursue  it  in  an  exacting  way, 
and  with  slight  recognition  of  political  obligations.  These 
obligations  bind  those  who  wish  to  improve  the  political 
outlook,  and  have  no  strength  with  those  indifferent  to  it. 
Partisanship  is  simply  a  method  of  subjecting  the  good  to 
the  evil.  It  is  a  blind  conventionalism,  available  chiefly 
with  the  sober  citizen,  by  which  the  political  boss  retains 
his  power.  In  the  adjustment  of  political  forces,  partisan 
ship  always  favors  those  least  amenable  to  reason.  It 
gives  the  unscrupulous  man  a  growing  advantage  over 
the  scrupulous  one.  It  springs  out  of  corruption  and 
enhances  corruption. 


Conclusions  205 

Our  politics  owe  their  deterioration  to  the  fact  that  no 
important  and  opposed  social  interests  have  for  a  long 
time  appeared  in  them.  The  predominance  of  neither 
party  produces  any  decisive  change.  Victory  here  or  vic 
tory  there  only  shifts  the  causes  of  irritation.  During 
the  slavery  controversy,  strong  men  were  kept  in  the 
front,  and  oftentimes  men  of  remarkable  moral  tone. 
The  nation  was  led  by  its  leaders,  and  a  discussion  went 
forward  which  was  in  a  high  degree  stimulating  to  the 
public  mind  and  heart.  The  one  difficulty  in  this  period, 
in  itself  one  of  national  development,  was  that  the  social 
and  political  interests  involved  were  irreconcilable,  and  so 
incapable  of  reaching  any  higher  point  of  union.  In 
creasingly  coir  political  parties  have  lost  social  affiliations. 
No  permanent  and  pushing  social  interest  has  been  em 
bodied  in  them.  They  have  both  lent  themselves,  and 
almost  equally,  to  the  predominant  commercial  temper, 
which  has  had  undisputed  sway  since  the  Civil  War.  The 
forces  expressed  in  corporations  and  trusts  have  harnessed 
either  party,  as  occasion  offered,  to  their  heavily  loaded 
dray,  and  have  been  content  to  pay  one  team  or  another, 
or  both,  if  they  were  at  liberty  to  drive  on.  There  has 
been  no  social  problem  which  has  engaged  political 
parties.  They  have  given  themselves  to  the  pursuit  of 
power,  and  the  use  of  power  for  ends  of  power.  Intrigue 
even  has  gained  no  character  and  lost  no  character  in 
passing  from  one  party  to  the  other.  The  means  of 
organization,  the  convention,  the  caucus,  the  boss,  have 
become  ever  more  important,  as  on  the  skilful  use  of 
them  depends  success.  To  regard  this  process  of  politi 
cal  decay  as  self-regulating,  as  a  slow  circuit  by  which 
we  return  to  a  sound  mind,  is  absurd. 

We  approached  a  renovating  movement  in  the  outbreak 


2o6  The  Growth  of  Nationality 

of  the  Populists.  It  was  a  revolt  of  the  agricultural  and 
working  classes  against  the  commercial  class.  It  has  so 
far  come  to  nothing  chiefly  because  those  who  engaged  in 
it  as  little  understood  their  own  interests  as  they  did  the 
interest  of  the  country.  They  went  off  on  a  false  scent, 
and  barked  themselves  out  of  breath  and  out  of  repute  by 
a  pursuit  of  that  will-o'-the-wisp,  cheap  money.  They 
left  their  real  grievances  in  the  background.  If  they 
had  based  their  claims  on  free  trade,  on  corrected  taxa 
tion,  on  the  fitting  use  of  franchises,  and  pursued  these 
ends  with  proximate  wisdom,  the  result  would  have  been 
very  different.  Any  sound  issue,  as  seen  in  the  currency 
question  or  in  prohibition,  is  flung  hither  and  thither,  or 
wholly  submerged  by  the  vacillating  surge  of  pure  politics. 

If  the  workmen  could  embody  their  social  claims  in 
political  doctrines  and  force  them  to  the  front,  we  should 
at  once  have  a  real  controversy,  which  would  lay  open 
methods  of  improvement.  Our  politics  for  thirty  years 
have  not  taken  hold  of  our  social  life,  have  involved 
the  secret  victories  of  an  exacting  commercial  temper, 
subjecting  all  things  in  all  excessive  and  corrupt  ways  to 
itself.  Our  politics,  as  a  simply  surface  movement,  will 
be  more  and  more  the  wash  of  a  tide  which  drags  out 
the  filth  of  a  dirty  harbor  only  to  bring  it  back  and  cast  it 
higher  at  the  next  flow. 

§  7.  The  state  of  things  in  England  has  been  remark 
ably  diverse.  Rarely  has  any  nation  been  under  the 
more  complete  control  of  a  single  class  than  was  England 
in  the  eighteenth  century.  The  landed  interest  held  in 
hand  both  Houses  of  Parliament  and  all  local  govern 
ment.  Politics  were  correspondingly  corrupt.  Factions 
and  personal  interests  everywhere  prevailed.  The  ex 
clusive  struggle  was  for  power.  At  the  close  of  the  cen- 


Conclusions  207 

tury  and  at  the  opening  of  the  nineteenth  century,  com 
mercial  interests  gained  an  unusually  rapid  expansion. 
The  social  and  political  changes  incident  to  such  a  shift 
ing  of  forces  were  retarded  by  the  reaction  in  England 
occasioned  by  the  violence  of  the  French  Revolution. 
Hence  there  was  an  accumulation  of  unsatisfied  claims  in 
the  commercial  class  that  at  length  disposed  them,  and 
enabled  them,  to  demand  immediate  concessions.  The 
controversy  was  wide  in  its  range.  It  pertained  to  re 
ligious,  civil,  and  political  rights.  Hence  there  arose  a 
conflict  of  classes  which  has  given  character  to  the  politi 
cal  life  of  England  for  many  years.  Along  the  line  of 
pressure  between  two  sets  of  interests,  capable  of  recon 
ciliation  but  as  yet  unreconciled,  has  arisen  a  long  series 
of  measures  by  which  an  equilibrium  has  been  approached. 
All  the  various  forms  of  faith  have  been  conceded  po 
litical  rights.  Representation  in  the  House  of  Commons, 
which  had  fallen  into  the  control  of  the  country  gentry, 
was  corrected  by  the  Reform  Bill  of  1832.  Great  in 
dustrial  centres  gained  representation,  and  thinly  occu 
pied  or  deserted  rural  districts  lost  it.  By  the  Act  of 
1835,  the  charters  of  the  cities  of  England  —  with  the 
exception  of  London — were  restored  to  a  uniform  and 
reasonable  basis  in  the  rights  enjoyed  and  privileges  con 
ferred.  The  abuses  of  centuries  were  swept  away.  Then 
came  the  repeal  of  the  Corn  Laws  in  1846,  under  the  lead 
of  such  men  as  Cobden  and  Bright,  a  repeal  made  possible 
by  the  unyielding  demand  of  manufacturing  interests,  and 
by  the  new  gospel  of  political  economy  which  had  been 
shaped  in  harmony  with  them.  How  different  the  con 
ditions  of  this  controversy  of  protection  in  the  United 
States.  With  us  the  commercial  interest  has  been  the 
aggressive  one,  while  the  agricultural  interest,  feeble  and 


2o8  The  Growth  of  Nationality 

scattered,  has  been  able  to  oppose  no  adequate  resistance. 
When  England  was  breaking  down  privilege,  we  were 
establishing  it.  When  she  was  overthrowing  a  ruling 
class,  we  were  building  one  up. 

The  extension  of  suffrage,  in  1867  and  1884,  lay  in  the 
same  direction ;  as  also  the  reform  in  county  government 
in  1888.  These  leading  measures  were  interspersed  and 
supported  by  many  minor  ones.  A  new  and  better 
balance  of  social  interests  grew  up  with,  and  was 
strengthened  by,  corrective  legislation.  Personal  claims 
were  crowded  into  the  background,  and  public  attention 
was  directed  to  adequate  and  urgent  issues. 

Under  the  shadow  of  this  movement,  and  in  sympathy 
with  it,  though  not  directly  aided  by  it,  the  workmen 
were  able,  in  1875,  to  cast  off  the  bondage  of  judicial  and 
statute  law,  discriminating  against  them  in  the  adminis 
tration  of  justice.  They  were  able  to  assert  an  identity 
of  rights  with  their  fellow-citizens  in  seeking  their  own 
advancement. 

Herein  is  a  reason  for  the  great  diversity  of  develop 
ment  in  England  and  the  United  States  in  the  present 
century.  Political  life,  in  the  one  country,  was  identified 
with  social  life.  Adequate  structural  purposes  were  kept 
in  the  foreground.  In  the  other  country,  an  ever  more 
dominant  and  aggressive  commercial  temper  has  pre 
vailed.  The  general  prosperity  of  the  country,  relieving 
the  pressure  and  reducing  the  sense  of  wrong,  the  weak 
ness  of  the  agricultural  and  working  classes  and  their  con 
fused  and  conflicting  apprehension  of  the  injuries  suffered 
by  them,  have  prevented  any  firm  resistance.  Political  life 
has  thus  separated  itself  from  social  life,  and  become  a  sub 
ordinate  and  corrupt  term  in  the  general  struggle  for  wealth 
and  power.  Hence  the  conclusion  of  what  we  have  said 


Conclusions  209 

and  have  to  say— the  growth  of  nationality  must  always 
mean  the  collective  growth  of  political  institutions,  in 
dustrial  relations  and  class  dependencies,  ever  in  more 
harmonious  submission  and  ministration  to  each  other. 
That  political  movement  which  expresses  existing  social 
forces  is  sound  and  wholesome;  that  political  activity 
which  creates  and  pursues  its  own  ends  is  superficial  and 
corrupt.  Our  nationality  is  to  be  fully  won  or  finally 
lost  in  the  apprehension  and  pursuit  of  our  social  welfare. 


CASES  CITED 


Ableman  vs.  Booth,  21  Howard,  506,  pp.  40,  113. 
Armstrong  vs.  Athens  Co.,  16  Peters,  281,  p.  142. 

B 

Barbier  vs.  Connolly,  113  U.  S.,  27,  p.  106. 

Beer  Co.  vs.  Massachusetts,  7  Otto,  25,  p.  148. 

Bradwell  vs.  Illinois,  16  Wallace,  130,  p.  105. 

Briscoe  vs.  Bank  of  the  Commonwealth  of  Kentucky,  n  Peters, 
257,  p.  1 8. 

Butchers'  Union  Co.  vs.  Crescent  City  Co.,  in  U.  S.,  746,  p. 
149. 

C 

Charles  River  Bridge  vs.  Warren  Bridge,  n  Peters,  420,  p.  138. 

Chicago,  Burlington,  and  Quincy  Railroad  vs.  Iowa,  94  U.  S.% 
155,  P-  155. 

Cincinnati,  New  Orleans,  and  Texas  Pacific  Railway  vs.  Inter 
state  Commerce  Commission,  162  U.  S.,  184,  p.  177. 

Civil  Rights  Cases,  109  U.  S.,  3,  p.  106. 

Counselman  vs.  Hitchcock,  142  U.  S.,  547,  p.  172. 

Craig  vs.  Missouri,  4  Peters,  410,  p.  18. 

D 

Dartmouth  College  vs.  Woodward,  4  Wheaton,  518,  p.  136. 

In  re  Debs,  158  U.  S.,  564,  p.  183. 

Dred  Scott  vs.  Sandford,  19  Howard,  393,  p.  86. 

F 
Fertilizing  Co.  vs.  Hyde  Park,  7  Otto,  659,  p.  148. 

211 


212  Cases  Cited 

H 

Hennington  vs.  Georgia,  163  U.  S.,  299,  p.  106. 
Hepburn  vs.  Griswold,  8  Wallace,  603,  p.  86. 
Hylton  vs.  United  States,  3  Dallas,  171,  pp.  12,  191. 


Insurance  Co.  vs.  Canter,  i  Peters,  511,  p.  15. 
Interstate  Commerce  Commission  vs.  Cincinnati,  New  Orleans, 
and  Texas  Pacific  Railway,  167  U.  S.,  479,  p.  177. 

j 

Jackson  vs.  Lamphire,  3  Peters,  280,  p.  137. 
Juilliard  vs.  Greenman,  no  U.  S.,  421,  p.  94. 

K 
Kidd  vs.  Pearson,  128  U.  S.t  i,  p.  151. 

L 

Leisy  vs.  Hardin,  135  U.  S.,  100,  p.  150. 

License  Cases,  5  Howard,  504,  p.  150. 

Loan  Association  vs.  Topeka,  20  Wallace,  655,  p.  150. 

M 

Marbury  vs.  Madison,  i  Cranch,  137,  p.  16. 

Maryland  vs.  Baltimore  and  Ohio  Railroad,  3  Howard,  534, 

p.  142. 

McCardle,  6  Wallace,  318,  p.  114. 
McCardle,  7  Wallace,  506,  p.  119. 
McCullock  vs.  Maryland,  4  Wheaton,  316,  p.  14. 
Milligan,  4  Wallace,  2,  p.  113. 
Munn  vs.  Illinois,  94  U.  S.,  113,  p.  152. 

N 
New  Hampshire  vs.  Louisiana  and  others,  108  U.  S.,  76,  p.  30. 


Cases  Cited  213 

o 

Ogden  vs.  Saunders,  12  Wheaton,  213,  p.  137. 

P 

Parker  vs.  Davis,  12  Wallace,  457,  p.  94. 

Parkersburg  vs.  Brown,  16  Otto,  487,  p.  150. 

Peck  vs.  Chicago  and  Northwestern  Railroad,  94  U.  S.,  164, 

P-  155- 

Pollock  vs.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.,  429,  p.  187. 
Powell  vs.  Pennsylvania,  127  U.  S.,  678,  p.  151. 
Providence  Bank  vs.  Billings  &  Pittman,  4  Peters,  514,  p.  138. 


Slaughter  House  Cases,  16  Wallace,  36,  p.  103. 

Springer  vs.  United  States,  102  U.  S.,  586,  p.  192. 

Stone  vs.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.,  347,  p.  156. 

Stone  vs.  Mississippi,  101  U.  S.,  814,  p.  149. 

Stone  and  others  vs.  Illinois  Central  Railroad,  116  U.  S.,  347, 
p.  156. 

Stone  and  others  vs.  New  Orleans  and  Northwestern  Rail 
road,  116  U.  S.,  352,  p.  156. 

Strander  vs.  West  Virginia,  100  U.  S.,  303,  p.  105. 

T 
Troy  Case,  168  U.  S.,  144,  p.  176. 

U 
United  States  vs.  Klein,  13  Wallace,  128,  p.  122. 

W 

Ware  vs.  Hylton,  3  Dallas,  199,  p.  13. 

West  River  Bridge  Co.  vs.  Dix,  6  Howard,  507,  p.  142. 

Winchester  vs.  Georgia,  6  Peters,  515,  p.  40. 

Winona  and  St.  Peters  Railway  vs.  Blake,  94  U.  S.,  180,  p.  155. 


THE  WORKS  OF  PROF.  JOHN  BASCOM. 

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The  Science  of  Mind.    Octavo,  pp.  xi  -}-  462    .        $2  oo 

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Philosophy  of  English  Literature.  A  course  of  lectures 
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Philosophy  of  Rhetoric.     (With  illustrative  examples  by 
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Historical   Interpretation  of   Philosophy.      i2mo,   pp. 
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